Federal Criminal Law Opinions

FLORIDA MED CENTER OF CLEARWATER, INC., Plaintiff-Appellant, v. KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services, Defendant-Appellee. 11th Circuit. Case No. 09-13922. August 19, 2010. Appeal from the U.S. District Court for the Middle District of Florida (No. 08-02336-CV-T-26-TGW).

(Before BLACK, HULL, and KRAVITCH, Circuit Judges.)

(KRAVITCH, Circuit Judge.) In this Medicare-fraud case, we must decide whether the Secretary of Health and Human Services properly concluded that payments to a Medicare services provider that had falsified its Medicare enrollment application were an overpayment subject to recoupment. We hold that this conclusion was proper.

I. Background
In the 1980s, Dr. Surindar S. Bedi was incarcerated for committing a Medicare-related crime. As required by § 1128 of the Social Security Act, the Secretary of Health and Human Services notified Bedi in 1990 that he was excluded from the Medicare program.1 The Secretary’s exclusion letter advised Bedi that he would receive no Medicare payment “for any items or service . . . that he furnished, ordered, or prescribed for the next ten years because of the seriousness of his crime.”2 The letter also explained that

payment will not be made to any entity in which you are serving as an employee, administrator, operator, or in any other capacity for any services that you furnish, order, or prescribe on or after the effective date of this exclusion. In addition . . . no payment will be made to any supplier wholly owned by you during the exclusion period.
While these exclusions were still in effect, Bedi became president and 51-percent owner of Florida Medical Center of Clearwater (FMC), a provider of medical services. In 1996, Aaron Stuart, the office manager and 24-percent owner of FMC, submitted a Medicare Provider/Supplier Enrollment Application to the Center for Medicare & Medicaid Services (CMS). This application listed Stuart as the sole owner of FMC and failed to disclose both Bedi’s controlling ownership interest and his position as President of FMC. Stuart and Bedi later pleaded guilty to making a misrepresentation in a Medicare enrollment application, in violation of 18 U.S.C. § 1001.

During the time that Bedi owned a controlling stake in FMC, he was never involved in its daily operations, was not an employee, and did not provide any services to FMC or any of its patients. Furthermore, Bedi did not furnish, order, or prescribe any of the services for which FMC submitted Medicare claims. In 1998, Bedi sold his shares in FMC.

In 2001, CMS, acting through Florida Medicare Part B carrier First Coast Options, Inc., notified FMC that it had overpaid FMC by $311,263.13.3 CMS stated that FMC had been ineligible for payment between 1996 and 1998 because Bedi, an excluded provider, had been the majority owner of FMC during that period. First Coast recouped the money by withholding payment on other FMC claims.4

FMC appealed CMS’s overpayment determination to an administrative law judge (ALJ) and challenged the recoupment. After a hearing, the ALJ upheld CMS’s recoupment on two grounds. First, the ALJ determined that CMS had properly recouped the payments because the Secretary had intended to exclude FMC under the mandatory exclusion section of the Social Security Act.5 See 42 U.S.C. § 1320a-7(a)(1). Second, the ALJ concluded that FMC’s misrepresentations and omissions in its Medicare enrollment application rendered it ineligible for Medicare payments and justified the recoupment of the fraudulently obtained funds.6

FMC appealed this decision to the Medical Appeals Council, which denied review. FMC then appealed to the district court, which issued an order affirming the Secretary’s final decision on both grounds. FMC appeals.

II. Discussion
Because the Appeals Council denied FMC’s appeal, the ALJ’s decision is the final decision of the Secretary. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). When “reviewing the Secretary’s decisions,” we “must abide by those decisions ‘unless [they are] arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence in the record taken as a whole.’ ” Alacare Home Health Servs., Inc. v. Sullivan, 891 F.2d 850, 854 (11th Cir. 1990) (alteration in original). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) [17 Fla. L. Weekly Fed. C344a].

The Secretary has a common law right to recoup overpayments from Medicare Part B providers. Szekely v. Fla. Med. Ass’n, 517 F.2d 345, 349 (5th Cir. 1975).7 Because payment to an excluded Medicare Part B provider is clearly an overpayment, see 42 U.S.C. § 1395gg(b)(1), the critical question in this case is whether FMC was excluded from the Medicare Part B program between 1996 and 1998.

First, FMC argues that the ALJ erred in finding that the terms of the letter excluded it from the program under the mandatory exclusion section of the Social Security Act. We agree. Because FMC had not been convicted of any relevant offense, it was not covered by the mandatory exclusion section of the Social Security Act. See 42 U.S.C. § 1320a-7(a) (providing mandatory exclusions for “any individual or entity” convicted of various offenses). Instead, as an “entity controlled by a sanctioned individual,” FMC was covered by § 1128(b)’s “permissive exclusion” provision. See id. § 1320a-7(b)(8). Thus, the Secretary had the discretion to exclude FMC from the Medicare Part B program upon notice. See 42 U.S.C. § 1320a-7(c)(1). Here, the Secretary notified Bedi that it was excluding payments (1) to entities for services that he personally furnished or prescribed and (2) to entities wholly owned by Bedi. Because Bedi did not personally furnish or prescribe any Medicare services for FMC and did not wholly own FMC, the terms of the Secretary’s exclusion letter did not cover any payments to FMC between 1996 and 1998. We therefore conclude that the ALJ erred in determining that the exclusion letter excluded FMC from Medicare payments under the mandatory exclusion provision.

The ALJ alternatively found that FMC’s misrepresentation excluded it from the Medicare program. FMC challenges this conclusion on three grounds. First, FMC challenges the ALJ’s legal conclusion that FMC’s misrepresentations automatically excluded it from Medicare payments. It argues that a Medicare services provider’s misrepresentations only constitute a permissive basis for exclusion. See 42 U.S.C. § 1320a-7(b)(9) (listing “[f]ailure to disclose required information” in the “[p]ermissive exclusion” section).

We review the ALJ’s conclusions of law with deference when it is “apparent from the agency’s generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law.” United States v. Mead Corporation, 533 U.S. 218, 229 (2001) [14 Fla. L. Weekly Fed. S372a]. In such cases, we must determine whether “Congress has directly spoken to the precise question at issue.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). If it has not, we “do[ ] not simply impose [our] own construction of the statute,” but instead ask “whether the agency’s answer is based on a permissible construction of the statute.” Id.

Here, the ALJ’s legal conclusion requires deference. Although Congress did not explicitly delegate power to the Secretary to recoup overpayments from Medicare Part B providers by statute, Congress implicitly delegated common law authority to the Secretary to do so. See Szekely, 517 F.2d at 348-49. This kind of “implicit” delegation requires Chevron deference. Mead, 533 U.S. at 229. Furthermore, the relevant statutory framework does not specifically describe when payments to a Medicare services provider are subject to recoupment. See 42 U.S.C. § 1395gg(b). Thus, we ask only if the ALJ’s legal conclusion was a “permissible construction” of the Secretary’s recoupment power. Chevron, 467 U.S. at 843. Given that § 1833 of the Social Security Act provides that “[n]o payment may be made . . . for items or services furnished by any disclosing Part B provider unless such provider has provided the Secretary with full and complete information,” id. § 1320a-3a(a), it was clearly permissible for the ALJ to conclude that FMC’s misrepresentations automatically excluded it from the Medicare program and that payments to FMC were therefore subject to recoupment. Thus, we decline to reverse the ALJ’s legal conclusion.

Second, FMC argues that the Secretary did not provide sufficient legal reasoning for this conclusion. See Gibson v. Heckler, 779 F.2d 619, 622 (11th Cir. 1986) (“Failure to apply the correct legal standards or to provide the reviewing court with a sufficient basis on which to determine that the correct legal principles have been followed or that substantial evidence exists mandates a reversal.”). This argument is without merit. The ALJ explained in the final paragraph of its opinion that recoupment was justified because of “the misrepresentations and omissions in its Medicare Provider/Supplier Enrollment Application (HCFA Form 855).” The ALJ also explained that given these misrepresentations, “the issue could arise as to whether FMC’s participation in Medicare should have been permitted after Dr. Bedi left, absent a new application by FMC.” Furthermore, the ALJ cited § 1833 of the Social Security Act in its recitation of the applicable law. Thus, the ALJ applied the correct legal standards and provided enough legal analysis for review.

Third, FMC argues that the Secretary’s conclusion was not supported by substantial evidence. This argument also fails. The litigants do not dispute that FMC misrepresented Bedi’s controlling interest on its Medicare-enrollment application. This misrepresentation is sufficient to support the conclusion that FMC’s material misrepresentation rendered it subject to recoupment.

Finally, FMC argues that the recoupment was an excessive fine in violation of the Eighth Amendment. See United States v. Bajakajian, 524 U.S. 321 (1998) (holding that a punitive forfeiture imposed on a criminal defendant was grossly disproportionate to the gravity of the defendant’s offense). In particular, it contends that the Secretary’s recoupment was punitive because the government did not sustain any loss from FMC’s Medicare services.

“The Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” Austin v. United States, 509 U.S. 602, 609-10 (1993) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco, 492 U.S. 257, 265 (1989)). CMS’s recoupment did not seek to punish FMC for its misrepresentation. Instead, it sought to recover money to which FMC was never entitled. Thus, the recoupment does not qualify as a punitive fine and cannot violate the Excessive Fines Clause.

Accordingly, we AFFIRM the district court’s judgment upholding CMS’s recoupment.

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1Section 1128(a)(1) provides for the mandatory exclusion of “any individual or entity that has been convicted of a criminal offense related to the delivery of an item or service under Title XVIII.” 42 U.S.C. § 1320a-7(a)(1). Section 1128(c) states that an exclusion is only effective upon notice to the affected individual. 42 U.S.C. § 1320a-7(c).

2Under § 1128(c)(3)(B) of the Social Security Act, the minimum period of exclusion for a program-related crime is five years. 42 U.S.C. § 1320a-7(c)(3)(B).

3In administering Medicare Part B, CMS acts through private fiscal agents called “carriers.” See 42 U.S.C. § 1395u; 42 C.F.R. Part 421, Subparts A and C; id. § 421.5(b). Carriers like First Coast are private entities that perform a variety of contractual services, including making coverage determinations, determining reimbursement rates and allowable payments, conducting audits of the claims submitted for payment, and adjusting payments and payment requests. See 42 U.S.C. § 1395u(b)(3)(B).

4For reasons of administrative efficiency, carriers typically authorize payment on claims immediately upon receipt of claims, so long as the claims do not contain glaring irregularities. Later, carriers conduct post-payment audits to verify that the payments were proper. See 42 U.S.C. § 1395u; 42 C.F.R. § 421.200(a)(2). If the carrier discovers that an overpayment has occurred, the carrier may suspend or recoup payment. 42 C.F.R. § 405.371(a).

5The ALJ also concluded that the permissive exclusion section of the Social Security Act, see 42 U.S.C. § 1320a-7(b), was inapplicable to FMC.

6In the final paragraph of the ALJ’s opinion, it held “[t]he money recouped from the appellant was because of a determination that FMC was ineligible from participating in the Medicare program . . . due to . . . the misrepresentations and omissions in its Medicare Provider/Supplier Enrollment Application.”

7In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.

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MARLENE WHITTIER, as Personal Representative of the Estate of Anthony Diotaiuto deceased and individually, ANDREW DIOTAIUTO, Plaintiffs-Appellees, v. DANIEL KOBAYASHI, individually, Defendant-Appellant. 11th Circuit. Case No. 08-12998. August 31, 2009. Appeal from the U.S. District Court for the Southern District of Florida (No. 07-60476 CV-WPD).

(Before EDMONDSON, BLACK and SILER,* Circuit Judges.)

(PER CURIAM.) Daniel Kobayashi, an officer with the City of Sunrise, Florida, Police Department, appeals the district court’s order denying in part his motion for summary judgment. Kobayashi was a member of a Special Weapons and Tactics (SWAT) team that conducted a raid on Plaintiff-Appellee Marlene Whittier’s home, which she shared with her son, Anthony Diotaiuto. During the raid, Diotaiuto was shot and killed. Whittier brought a 42 U.S.C. § 1983 action, both individually and as personal representative for Diotaiuto’s estate, against several members of the SWAT team alleging, inter alia, Kobayashi violated her son’s Fourth Amendment rights when he entered her home without first knocking and announcing the SWAT team’s presence. After extensive discovery, Kobayashi moved for summary judgment, arguing he was entitled to qualified immunity and no genuine issue of material fact existed as to whether a knock and announce occurred. The district court denied his motion as to Whittier’s knock-and-announce claim. Because Kobayashi is entitled to qualified immunity, we now reverse.

I. FACTS
In July 2005, one of Anthony Diotaiuto’s neighbors informed the City of Sunrise Police Department (Sunrise police) that Diotaiuto was selling large quantities of cannabis and cocaine from his residence. Based upon this information, law enforcement began an investigation of Diotaiuto’s drug activity, which included surveillance of the Whittier/Diotaiuto residence and a “controlled buy” of marijuana by a confidential informant. In addition to evidence that Diotaiuto was selling illegal narcotics in his home, the investigation also revealed Diotaiuto carried a handgun on his person at all times and kept a loaded shotgun in his bedroom closet.

On August 3, 2005, a state circuit judge signed a warrant for the Sunrise police to search the Whittier/Diotaiuto home. Based upon Diotaiuto’s drug activity and possession of firearms, the Sunrise police classified the warrant as “high risk,” which the Sunrise police define as “involving acts of violence or potential acts of violence.” The Sunrise police use a SWAT team in the service of all “high risk” warrants, and thus a SWAT team was assembled to serve the warrant on the Whittier/Diotaiuto residence.

In preparation for the service of the warrant, the Sunrise police made a SWAT operational plan. This plan indicated Diotaiuto sold illegal narcotics from his home, had a criminal history, and possessed two firearms — a semi-automatic handgun carried on his person and a shotgun kept in his bedroom closet. The plan also called for an eight-man SWAT team to execute the warrant; Kobayashi was designated as the team leader and was responsible for knocking and announcing the presence of the SWAT team prior to entry. The members of the SWAT team received and reviewed the information in the operational plan during a briefing that was held in the early morning hours of August 5, 2005.

Following the briefing, at just after 6:00 a.m. on that same day, the SWAT team arrived at the Whittier/Diotaiuto residence to execute the warrant. According to the testimony of the officers, Kobayashi approached the door, knocked loudly several times, and announced the presence of the Sunrise police and the search warrant. Fourteen police officers present at the scene testified they heard a knock and announce. Only a single officer did not hear a knock and announce. Despite the fact that nearly every officer present heard a loud and forceful knock and announce, not a single neighbor heard a knock or an announcement of the police presence. At least three neighbors testified they were listening and would have been able to hear such an announcement if it had occurred.

Next, Kobayashi signaled for the breach team to open the front door. After the door was pried open, the SWAT team entered the home and encountered Diotaiuto, whom Kobayashi instructed to “get on the ground.” Diotaiuto did not comply with the order and instead ran to his bedroom. Two SWAT team officers followed in pursuant, kicked open the bedroom door, and followed Diotaiuto inside. According to the testimony of the officers, Diotaiuto entered his closet, racked a gun, and pointed it at the officers. Both officers were yelling at Diotaiuto to put the gun down. They then opened fire, and Diotaiuto fell back into the closet. From a seated position in the closet, Diotaiuto began to raise his gun again. Both officers yelled at Diotaiuto to drop the gun; their commands, however, were disregarded. The officers fired again, and Diotaiuto was killed.

II. STANDARD OF REVIEW
This Court reviews“de novo a district court’s disposition of a summary judgment motion based on qualified immunity, applying the same legal standards as the district court.” Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003) [17 Fla. L. Weekly Fed. C86a]. We resolve all issues of material fact in favor of the plaintiff, and then, under that version of the facts, determine the legal question of whether the defendant is entitled to qualified immunity. Id.

III. DISCUSSION
“Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) [16 Fla. L. Weekly Fed. C740a] (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002)) [15 Fla. L. Weekly Fed. S511a]. “[T]o receive qualified immunity, an official must first establish that ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ ” McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009) [21 Fla. L. Weekly Fed. 1567a] (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)) [15 Fla. L. Weekly Fed. C329a].

“If the official was acting within the scope of his discretionary authority . . . the burden shifts to the plaintiff to show that the official is not entitled to qualified immunity.” Skop v. City of Atlanta, 485 F.3d 1130, 1136-37 (11th Cir. 2007) [20 Fla. L. Weekly Fed. C579a]. “To overcome qualified immunity, the plaintiff must satisfy a two prong test; he must show that: (1) the defendant violated a constitutional right, and (2) this right was clearly established at the time of the alleged violation.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004) [17 Fla. L. Weekly Fed. C593a]. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2152, 2156 (2001) [14 Fla. L. Weekly Fed. S361a].

Whittier asserts Kobayashi entered her and her son’s residence without first knocking and announcing the SWAT team’s presence in violation of the Fourth Amendment. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. In Wilson v. Arkansas, 514 U.S. 927, 929, 115 S. Ct. 1914, 1915 (1995), the Supreme Court held the Fourth Amendment reasonableness inquiry incorporated the common law requirement that officers, when executing a search warrant, must knock on a door and announce their identity before attempting a forcible entry into a home. The Court, however, recognized “[t]he Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests,” id. at 934, 115 S. Ct. at 1918, and noted the knock-and-announce requirement could give way “under circumstances presenting a threat of physical violence,” or “where police officers have reason to believe that evidence would likely be destroyed if advance notice were given,” id. at 936, 115 S. Ct. at 1919.

Following Wilson, some courts created a blanket exception to the knock-and-announce requirement in felony drug cases, based in part on the generalization that these cases often involve a threat of violence and destruction of drugs. See Richards v. Wisconsin, 520 U.S. 385, 392, 117 S. Ct. 1416, 1420 (1997). In Richards v. Wisconsin, however, the Supreme Court rejected such a categorical exception and instead adopted a case-by-case approach for determining if law enforcement acted reasonably in entering a residence without first knocking and announcing: “In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Id. at 394, 117 S. Ct. at 1421. The Court acknowledged, however, “[t]his showing is not high.” Id., 117 S. Ct. at 1422.

Both Wilson and Richards were criminal cases in which the defendants had moved to suppress evidence based upon alleged Fourth Amendment violations. In the context of qualified immunity, this Court has stated “the issue is not whether reasonable suspicion existed in fact, but whether the officer had ‘arguable’ reasonable suspicion.” Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000). In other words, we analyze whether a reasonable officer could have had reasonable suspicion that exigent circumstances, such as a threat of violence and/or destruction of evidence, existed to justify the no-knock entry. See Brent v. Ashley, 247 F.3d 1294, 1303 (11th Cir. 2001) [14 Fla. L. Weekly Fed. C654a] (discussing the arguable reasonable suspicion standard within the context of strip searches). In undertaking the arguable reasonable suspicion inquiry, this Court must examine the totality of the circumstances to determine whether an officer had a “particularized and objective” basis to support his suspicion. Id. at 1304. Whether the officer’s suspicion ends up being mistaken is immaterial so long as it was reasonable. Id. at 1303.

Within the context of warrantless searches, we have held the mere presence of contraband, without more, does not give rise to exigent circumstances. United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991). At the same time, however, we have also repeatedly noted the dangerous, and often violent, combination of drugs and firearms, see, e.g., United States v. Hromada, 49 F.3d 685, 689 (11th Cir. 1995) (“Guns and violence go hand-in-hand with illegal drug operations.”), and several of our sister circuits have concluded this combination may give rise to reasonable suspicion of danger and justify a no-knock entry, see United States v. Stevens, 439 F.3d 983, 988-89 (8th Cir. 2006) (affirming a magistrate judge’s conclusion that a no-knock search was justified based upon the presence of drugs and a sawed-off shotgun in a common area of the house); United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003) (stating information that “the suspect was selling drugs and was typically armed. . . . exceeds the level this circuit has found sufficient to establish a reasonable suspicion of danger”).

In this case, we conclude Kobayashi is entitled to qualified immunity because a reasonable officer could have had reasonable suspicion that knocking and announcing his presence would have been dangerous under the circumstances facing the SWAT team.1 Those circumstances included serving a search warrant on the home of a suspected drug dealer (Diotaiuto), who had ready access to firearms and occupied the premises when the SWAT team arrived to serve the warrant. Indeed, based upon the information available to the SWAT team, Diotaiuto (1) received and sold narcotics, including cocaine and marijuana, at his residence; (2) had a criminal history; (3) carried a concealed semi-automatic handgun on his person; and (4) possessed a shotgun that he kept in his bedroom. This information, which was contained in the SWAT team’s operational plan and received and reviewed by the members of the team, provided a “particularized and objective” basis for a reasonable officer to suspect the situation had a potential for violence and to believe exigent circumstances existed to justify a no-knock entry.2

The fact that the operational plan called for a knock and announce prior to entry does not alter our analysis. Even assuming the operational plan, which was prepared prior to the service of the warrant, speaks for what Kobayashi actually believed as he stood outside the Whittier/Diotaiuto residence, Kobayashi’s subjective beliefs regarding the circumstances are irrelevant to the qualified immunity inquiry. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 2737-38 (1982) (discarding the subjective component of the qualified immunity inquiry and adopting the “objective reasonableness” standard); Jackson, 206 F.3d at 1165 (“[T]he standard for determining if an officer violated clearly established law is an objective one and does not include inquiry into the officer’s subjective intent or beliefs.”). Moreover, we have held an officer is entitled to qualified immunity even when he reasonably, but mistakenly, believes reasonable suspicion is present, see Brent, 247 F.3d at 1303; it makes little sense to not afford the same protection to an officer who, sensitive to the rights citizens enjoy under the Constitution, initially, but mistakenly, believes the situation involves a constitutional protection, but later learns it does not.

IV. CONCLUSION
In sum, we conclude Kobayashi is entitled to qualified immunity on Whittier’s knock-and-announce claim. Accordingly, we reverse the district court’s order denying his motion for summary judgment as to this claim.3

REVERSED.

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*Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.

1We are aware that Kobayashi maintains he did actually knock and announce the SWAT team’s presence and that fourteen officers have testified to that effect. Whether a knock and announcement actually occurred, however, is irrelevant to our analysis of arguable reasonable suspicion, and thus the outcome in this case is the same under both Kobayashi’s and Whittier’s versions of the facts.

2Our inquiry is whether Kobayashi had arguable reasonable suspicion that exigent circumstances existed to justify a no-knock entry, and thus we specifically decline to address whether exigent circumstances did indeed exist under the facts of this case. In a footnote of its order, the district court concluded no exigent circumstances existed. On appeal, we do not disturb this determination because the pertinent inquiry is not whether exigent circumstances actually existed, but whether a reasonable officer, acting under the same circumstances and possessing the same knowledge as Kobayashi, could have believed they did. See Jackson, 206 F.3d at 1165-66.

3Because we conclude Kobayashi is entitled to summary judgment on the basis of qualified immunity, we need not address the second issue he raises on appeal — that is, whether he is entitled to summary judgment on the ground that no genuine issue of material fact existed as to whether a knock and announce actually occurred. We note, however, we likely would not have jurisdiction to consider this issue on an interlocutory appeal, as it is not a part of, or inextricably intertwined with, the core qualified immunity issue. See Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S. Ct. 834, 842 (1996); Koch v. Rugg, 221 F.3d 1283, 1295-96 (11th Cir. 2000).

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