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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2003 Decided June 25, 2004
No. 02-3101
UNITED STATES OF AMERICA,
APPELLEE
v.
TIMOTHY J. CRIPPEN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00075–01)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender. Gregory L. Poe, Assis-
tant Federal Public Defender, entered an appearance.
Geoffrey A. Barrow, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Thomas J.
Tourish, Jr., and Ana Matheson, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and ROGERS and TATEL,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
Separate opinion concurring in the judgment filed by Cir-
cuit Judge ROGERS.
GINSBURG, Chief Judge: A jury convicted Timothy J. Crip-
pen of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). Crippen challenges his conviction on
the ground that the district court erred in denying his motion
to suppress evidence, namely, guns and ammunition, seized
from his residence. Because we conclude the district court
correctly denied Crippen’s motion, we affirm his conviction.
I. Background
The Metropolitan Police Department (MPD) learned from a
confidential informant that Crippen, a convicted felon, had
several weapons in his house in northeast Washington, D.C.
The informant mentioned specifically having seen a sawed-off
shotgun and two semi-automatic pistols. Based upon this
information, Officer John Allen of the MPD’s Fifth District
sought and obtained a search warrant for the house. Before
the warrant had been executed, however, the informant told
Officer Allen that Crippen was trying to acquire a rocket
launcher. A few days thereafter, the informant reported that
he had seen a rocket launcher in Crippen’s house. He
described it as a shoulder-fired weapon consisting of a green
two-piece tube and a ‘‘flip up’’ site.
Officer Allen then asked the MPD’s Emergency Response
Team (ERT) to execute the search warrant because of ‘‘the
danger TTT of the rocket launcher.’’ During a briefing for the
ERT prior to executing the warrant, an officer demonstrated
just how quickly a rocket launcher could be armed. He also
said if the rocket launcher were fired at an officer ‘‘standing
in the doorway TTT it would go straight through [him].’’
The warrant was executed at 7:48 a.m. by a team of more
than 20 ERT officers in tactical gear. Before the officers
approached Crippen’s door, a plain-clothed animal control
3
officer entered the yard to secure Crippen’s dog. The lead
officer then knocked three times on the front door and
announced: ‘‘Police with a search warrant.’’ Four seconds
later,* police forced the door open with a battering ram and
threw a ‘‘flash bang’’ diversionary device into the house. The
officers found Crippen unarmed and asked him whether there
were weapons in the house. Crippen directed them to a 12–
gauge shotgun and a semi-automatic pistol in his bedroom
closet. The officers also found a box of 12–gauge shotgun
shells under a bed. They did not find the rocket launcher or
the second semi-automatic pistol the informant had reported
seeing.
At a pretrial hearing Crippen moved to suppress all the
evidence recovered from his home on the ground the officers
had ‘‘failed to provide a reasonable opportunity for the resi-
dents to open the door and TTT did not sufficiently announce
their authority and purpose.’’ The district court denied the
motion, holding:
[A]t the very least there were exigent circumstances that
justified the actions of the police. Those circumstances
being information received by an informant TTT relatively
shortly before the entry into the house that inside the
house were weapons including a weapon described as a
rocket launcher. A weapon TTT the dangerousness of
which was described by one of the police officer wit-
nesses in this case. TTT Furthermore, the Court is of
the view that even if there had been TTT something
falling short of exigency, the degree to which there was a
violation of the statute would not warrant suppression of
the evidence in this case.
Crippen then entered a conditional plea of guilty, reserving
his right to appeal the denial of his motion to suppress.
* The MPD videotape of the event shows the officers waited only
four seconds before forcing entry into Crippen’s home. We find it
troubling that the police report first stated the executing officers
had waited 10 seconds before forcing entry — and more troubling
still that the report was then changed to say they had waited 40
seconds.
4
On appeal Crippen argues the district court should have
suppressed the evidence seized from his home because the
officers forced entry in violation both of the Fourth Amend-
ment to the Constitution of the United States and of the
‘‘knock and announce’’ statute, 28 U.S.C. § 3109. He posits
the district court based its finding of exigent circumstances
solely upon the presence of dangerous weapons and thus
adopted a ‘‘categorical approach’’ inconsistent with the deci-
sion of the Supreme Court in Richards v. Wisconsin, 520 U.S.
385 (1997). The Government counters, first, the district court
properly found the circumstances were exigent and, second,
suppression of the evidence would not have been warranted
even absent an exigency.
II. Analysis
Preliminarily, we reject the Government’s argument that
we must affirm Crippen’s conviction because he has not
challenged on appeal what the Government characterizes as
the district court’s ‘‘alternative holding,’’ namely, that sup-
pression was not warranted irrespective of the officers’ non-
compliance with § 3109. The Government here relies upon
the last sentence excerpted above from the district court’s
oral opinion at the suppression hearing. That fragment is not
sufficiently reasoned to fault the defendant for not having
treated it as an independent basis for the district court’s
decision. Just as the rule of lenity requires that we interpret
an ambiguous criminal statute in the defendant’s favor, see,
e.g., United States v. Bass, 404 U.S. 336, 347–49 (1971), so
does the requirement of notice counsel against reading the
district court’s decision indulgently to the detriment of the
defendant. Cf. Smith v. O’Grady, 312 U.S. 329, 334 (1941)
(‘‘most universally recognized requirement of due process’’ is
‘‘real notice [to defendant] of the true nature of the charge
against him’’).
A. Knock and Announce
Under the Fourth Amendment and 18 U.S.C. § 3109, a law
enforcement officer may forcibly enter a residence in order to
execute a search warrant ‘‘if, after notice of his authority and
5
purpose, he is refused admittance.’’ 18 U.S.C. § 3109; see
United States v. Ramirez, 523 U.S. 65, 72–73 (1998). ‘‘[T]he
phrase ‘refused admittance’ is not restricted to an affirmative
refusal, but encompasses circumstances that constitute con-
structive or reasonably inferred refusal.’’ United States v.
Bonner, 874 F.2d 822, 824 (D.C. Cir. 1989). The entire
‘‘knock and announce’’ requirement ‘‘gives way,’’ however,
‘‘when officers ‘have a reasonable suspicion that knocking and
announcing their presence, under the particular circum-
stances, would be dangerous or futile, or TTT would inhibit the
effective investigation of the crime by, for example, allowing
the destruction of evidence.’ ’’ United States v. Banks,
U.S. , 124 S.Ct. 521, 525 (2003) (quoting Richards, 520
U.S. at 394). The standard for establishing such a reasonable
suspicion is ‘‘not high.’’ Richards, 520 U.S. at 394.
In this case it is undisputed the officers were obliged to
knock and announce their presence and purpose when execut-
ing the search warrant. It is also undisputed the officers
were not actually refused admittance to Crippen’s house, nor
did they wait long enough to infer they were being refused
admittance. The question is whether, as the Government
contends, exigent circumstances justify the officers’ decision
to force entry when they did.
B. Exigent Circumstances
In evaluating the Government’s claim of exigent circum-
stances we review the district court’s legal conclusions de
novo; we review its factual findings only for clear error. ‘‘A
broad range of exigent circumstances has been found to
justify less than full compliance with the various require-
ments of section 3109,’’ Bonner, 874 F.2d at 826, and, by
implication, of the Fourth Amendment. There are, however,
no bright-line rules or per se exceptions to the knock and
announce requirement; we must therefore evaluate each
claim of exigent circumstances upon ‘‘the facts and circum-
stances of the particular entry.’’ Richards, 520 U.S. at 394.
Relying upon decisions of the Sixth, Eighth, and Tenth
Circuits, Crippen maintains the anticipated presence of a
firearm on the premises to be searched cannot by itself
6
excuse the officers’ failure fully to comply with § 3109. See
United States v. Moore, 91 F.3d 96, 98 (10th Cir. 1996)
(Government must ‘‘demonstrate that the presence of fire-
arms raised a concern for the officers’ safety’’); United States
v. Bates, 84 F.3d 790, 796 (6th Cir. 1996) (fifteen kilograms of
cocaine and potential presence of handgun insufficient to
excuse compliance with knock and announce requirement);
United States v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993)
(‘‘reasonable belief that firearms may have been within the
residence, standing alone, is clearly insufficient’’). Crippen’s
reliance upon these cases is misplaced.
In United States v. Geraldo, 271 F.3d 1112 (D.C. Cir. 2001),
after acknowledging the aforementioned decisions of the Sixth
and the Tenth Circuits, we explicitly reserved the question
whether the mere presence of a gun could be sufficient to
establish exigent circumstances. See id. at 1118. We did so
because in Geraldo itself there was more: The police were
aware the premises to be searched had been robbed a few
months earlier and that, since then, one occupant ‘‘had been
seen wearing a revolver, allegedly to protect the residence
from additional robberies.’’ Id. That information gave the
police reason to suspect knocking and announcing their pur-
pose and then waiting to be refused admittance would be
particularly dangerous; ‘‘the agents had specific knowledge
that [the occupant] kept a firearm to protect against intruders
and therefore might be quick to use it.’’ Id.
Here, as in Geraldo, we have no occasion to decide whether
the anticipated presence of a gun could be sufficient by itself
to create an exigency excusing less than full compliance with
the requirements of the knock and announce statute and of
the Fourth Amendment. Again there is something more
involved than a mere gun.
A rocket launcher (a/k/a bazooka), is a high-powered weap-
on designed for use against hardened targets — such as
armored tanks, see United States v. McAnderson, 914 F.2d
934, 940 (7th Cir. 1990) — with which the MPD presumably
has little, if any, experience. The MPD was reasonably
apprehensive enough to send more than 20 members of the
7
ERT to execute the warrant specifically because of ‘‘the
danger [created by] the potential of the rocket launcher being
TTT in the house.’’ The ERT had been told that if the rocket
launcher were fired at an officer ‘‘standing in the doorway TTT
it would go straight through [him].’’ The unconventional
nature of the weapon and the speed with which it could be
loaded sufficed to create an exigency that ripened almost
immediately after the officers knocked and announced their
presence and purpose. Cf. Banks, 124 S.Ct. at 526. We
therefore conclude the search satisfied the requirements both
of the Fourth Amendment and of § 3109.
III. Conclusion
For the foregoing reasons, Crippen’s conviction is
Affirmed.
1
ROGERS, Circuit Judge, concurring in the judgment: I write
separately to clarify two points, the first regarding the ana-
lytical standard for, and the second regarding the nature of
the exigency exception to, the knock and announce require-
ments under 18 U.S.C. § 3109 and the Fourth Amendment.
I.
In United States v. Banks, 124 S. Ct. 521 (2003), the
Supreme Court recently addressed the analytical framework
for assessing the adequacy of police knocking and announcing
their presence when executing a warrant. The Court reject-
ed the ‘‘overlay of a categorical scheme on the general
reasonableness analysis.’’ Id. at 528. To the extent that
United States v. Bonner, 874 F.2d 822, 826 (D.C. Cir. 1989),
and its progeny, see, e.g., United States v. Kemp, 12 F.3d
1140, 1142 (D.C. Cir. 1994), are read to create such an
overlay, positing, absent some intervening exigency, a ten-
second minimum wait before police may reasonably infer
refusal of admittance, that ‘‘overgeneralization,’’ see Richards
v. Wisconsin, 520 U.S. 385, 393 (1997), can no longer survive.
What is a reasonable period of time for the police to wait
before entering pursuant to the knock and announce statute
depends on the totality of the circumstances. See Banks, 124
S. Ct. at 528; cf. United States v. Spriggs, 996 F.2d 320, 322
(D.C. Cir. 1993) (citing United States v. Davis, 617 F.2d 677,
695 (D.C. Cir. 1979)); Bonner, 874 F.2d at 825–26. After
Banks, irrespective of whether there might be potential bene-
fits of a baseline offering specific guidance to law enforcement
officials, cf. United States v. Reid, 997 F.2d 1576, 1579 (D.C.
Cir. 1993), there is no ‘‘template’’ or ‘‘formula’’ for determin-
ing reasonableness. See Banks, 124 S. Ct. at 525 (citing Go-
Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931),
and other cases).
Consequently, whether a reasonable period of time is fif-
teen seconds, see Spriggs, 996 F.2d at 322–23 (cited in Banks,
124 S. Ct. at 526 n.5), more than thirty seconds, see Griffin v.
United States, 618 A.2d 114, 115, 125 (D.C. 1992), or even one
to two minutes, see United States v. Leichtnam, 948 F.2d 370,
372, 374 (7th Cir. 1991), or more or less, will depend not on
2
whether the United States Attorney prosecutes a defendant
in the federal or District of Columbia courts, but on whether
an objective experienced law enforcement officer would, un-
der the totality of the circumstances, reasonably infer refusal
of admittance. See Bonner, 874 F.2d at 829; see also Banks,
124 S. Ct. at 527. Only if a knock and announcement is loud
enough to be heard, followed by a period long enough, in the
particular circumstances, for an occupant to answer or come
to the door, is there a constructive refusal of admittance to
the premises. See Leichtnam, 948 F.2d at 374. The duration
of this pause will vary depending on factors such as the time
of day, see Griffin, 618 A.2d at 121, the size of the premises to
which entry is sought, which may affect how long an occupant
would need to reach the door, see Bonner, 874 F.2d at 825,
whether the officers perceive light, movement, or sounds
reasonably indicating someone is up and about, see, e.g.,
Davis, 617 F.2d at 695, or whether the police had reason to
know, because they recently saw a person enter the place to
be searched, that the premises is occupied, see Griffin, 618
A.2d at 123 (citing United States v. DeLutis, 722 F.2d 902,
904 (1st Cir. 1983)). In many circumstances, ten seconds will
not be long enough for a reasonable officer to infer refusal of
admittance; therefore, the officer on the scene (and the
court) must look not to a bright line minimum time period,
but to the totality of the circumstances in determining wheth-
er there has been a constructive refusal of admittance.
II.
Of course, when an exigency arises, law enforcement offi-
cers ‘‘may go straight in.’’ Banks, 124 S. Ct. at 525. The
exigency that permits an exception to the knock and an-
nounce requirements is usually based on either of two con-
cerns: an immediate danger to the officers executing a war-
rant, or a high likelihood that evidence will be destroyed or a
suspect will flee before the police will be able to gain admit-
tance to the premises. Id. at 526. Only the former concern
is at issue here, and the government bears the burden of
showing exigent circumstances that serve to eliminate the
requirement that the police wait a reasonable period before
3
entering. Cf. United States v. Jeffers, 342 U.S. 48, 51 (1951).
As the court acknowledges, see op. at 5, the police did not
wait to be constructively denied admittance; there is no basis
to conclude from the record that the four second interval was
sufficient to allow a response from anyone inside 118 Quincy
Place, Northeast, much less to allow anyone to come to the
door. The question, therefore, is whether there were exigent
circumstances permitting the police to enter the house after
waiting only four seconds. See id.
The record indicates this case was a moving target because
the police altered the records about the time that elapsed
before they forcibly entered the premises. See op. at 3 n.*.
The government’s belated efforts to shore up its case as a
result of these vacillations possibly affected its opportunity to
flesh out the theoretical analysis for the conclusion that
exigent circumstances existed. Indeed, on appeal the govern-
ment seeks refuge in a so-called alternative ruling by the
district court, an attempt that the court properly rejects. See
op. at 4. But the court, too, does not flesh out a sufficient
analysis. Finding an exigency based on the presence of an
‘‘unconventional’’ weapon that might be used against a ‘‘hard-
ened target,’’ see op. at 6–7, would appear to decide the
question left open in United States v. Geraldo, 271 F.3d 1112,
1118 (D.C. Cir. 2001), and to threaten to create the type of
blanket exception the Supreme Court rejected in Richards.
Crippen contends that unless the government offered evi-
dence that an occupant of 118 Quincy Place was likely to react
violently upon being confronted by the police executing a
warrant, there was no exigency because the nature of the
weapons allegedly present did not alone suffice to ‘‘present[ ]
a threat of physical violence,’’ Wilson v. Arkansas, 514 U.S.
927, 936 (1995), as viewed from the perspective of an objec-
tive, reasonable police officer. While no circuit court of
appeals has held that the mere presence of a weapon auto-
matically creates an exigency, three circuits have held that it
does not. See United States v. Bates, 84 F.3d 790, 795 (6th
Cir. 1996); United States v. Moore, 91 F.3d 96, 98 (10th Cir.
1996); United States v. Marts, 986 F.2d 1216, 1218 (8th Cir.
1993); see also Williams v. United States, 576 A.2d 700, 706
4
(D.C. 1990) (quoting People v. Dumas, 512 P.2d 1208, 1213
(Cal. 1973)). The question is, however, open in this circuit,
see Geraldo, 271 F.3d at 1118, and the court declines now to
decide it on the ground that ‘‘something more’’ is present
here. See op. at 6.
While I agree that there is ‘‘something more’’ to this case,
the considerations relied on by the court would not suffice to
demonstrate exigent circumstances. The police had obtained
a search warrant based on an affidavit that a confidential
informant had seen ‘‘Timothy Crippen’’ with two semi-
automatic pistols and a ‘‘pistol-gripped shotgun with a laser
sight’’ at 118 Quincy Place. The government does not sug-
gest that this information sufficed to create an exigency that
obviated the need to comply with normal knock and announce
requirements. Nor did the government argue, in filing its
opposition to Crippen’s motion to suppress evidence, that an
exigency was created by the same informant’s post-warrant,
pre-search disclosure that ‘‘Timothy Crippen’’ had acquired a
rocket launcher. Instead, the government argued that ‘‘[i]t
can reasonably be inferred that the police were being denied
entry when they waited fourteen seconds and no one came to
the door.’’ The government first invoked the exigency excep-
tion only when, during the hearing on Crippen’s motion to
suppress, a videotape of the police entry revealed that the
police had broken the front door and entered the house only
four seconds after knocking and announcing, rather than the
forty seconds the police had claimed in their official report or
the fourteen seconds the United States Attorney had repre-
sented in its opposition to the motion to suppress.
The court would analogize the instant case to Geraldo,
where the police knew there was an armed gunman who
protected against robberies at a townhouse that was an active
site for drug sales and the locus for the search. See op. at 6
(citing Geraldo, 271 F.3d at 1118). Yet there is no similar
evidence suggesting that the police knew someone at 118
Quincy Place would react violently as a result of information
about recent instances in which Crippen or anyone else at the
premises had used the rocket launcher in a violent manner,
5
much less that someone had violently used or threatened to
use any of the firearms underlying the warrant. Cf. Culp v.
United States, 624 A.2d 460, 468 (D.C. 1993) (Rogers, C.J.,
concurring). In fact, the police affidavit for the search war-
rant indicates that the police believed the ‘‘Timothy Crippen’’
referred to by the informant was William Timothy Crippen,
appellant’s father, about whom the record lacks any evidence
of violent tendencies or a criminal history. While police
officers did testify that they believed there were two people
inside the house, they were uncertain of what precise violent
crime appellant Crippen had previously been convicted. Nor
did the police have information, as in Geraldo, about ongoing
criminal activity at the premises other than the unlawful
possession of firearms. Evidence of the presence of Crip-
pen’s dog added nothing relevant.
The court’s reliance on the additional circumstance that
members of an urban police department may not be familiar
with a rocket launcher appears misplaced. The government
presented evidence that the police had been instructed on the
power of a projectile fired from a rocket launcher and on the
time it would take to arm the weapon. Also, the length of
time for such arming was never made part of the record, and
given the government’s burden and its special ability to
produce the evidence, cf. United States v. Hoffman, 964 F.2d
21, 24 (D.C. Cir. 1992), the absence of evidence does not
warrant an inference favorable to the government, such as
that the rocket launcher could be armed quickly so as to
threaten the police knocking on the front door of the premis-
es. Furthermore, reliance on the police apprehension on
account of the presence of a rocket launcher, as evidenced by
the presence of more than twenty members of the Emergen-
cy Response Team to execute the warrant, carries at best
limited weight in the analysis of whether the government met
its burden to show exigent circumstances. In determining
whether there was an exigency, the court must analyze de
novo, see Ornelas v. United States, 517 U.S. 690, 699 (1996),
the reasonable suspicions of a hypothetical objective law
enforcement officer, rather than inquire into the beliefs of the
officers who actually carried out the search. See United
6
States v. Brown, 334 F.3d 1161, 1166–67 (D.C. Cir. 2003)
(citing Whren v. United States, 517 U.S. 806, 813 (1996), and
United States v. Christian, 187 F.3d 663, 670 (D.C. Cir.
1999)). Reliance on the subjective perceptions of the officers
at the scene as lending credence to the need to enter before
being denied admission would, in any event, be countered by
the testimony of the officer who breached the door that the
rocket launcher did not place the officers in ‘‘extraordinary
danger.’’
What ultimately makes this case not unlike Geraldo, and
supplies the ‘‘something more,’’ is not the presence of the
rocket launcher itself, but rather the inference that the police
could reasonably draw about Crippen from his suspected
recent acquisition of a tool of war, given the totality of
circumstances. Combined with the information about his
suspected possession of several other firearms, which are
strictly regulated in the District of Columbia, see D.C. Code
§ 22–4504, and his violent felony record, there was a reason-
able basis for police officers to be apprehensive for their
safety. Crippen, because of his suspected recent acquisition
of a tool of war, could reasonably be thought by the police to
be disposed to harbor violent anti-government tendencies and
therefore to use a firearm to resist the search, had the police
waited for a longer period after announcing their presence
and purpose. The government does not make this argument
in so many words, and the evidence regarding police appre-
hension referred to the danger from the launching of the
rocket itself. See op. at 2. But the argument is implied from
the government’s brief that it is the combination of the illegal
firearms, the rocket launcher, Crippen’s criminal record, and
his dog that created exigent circumstances. See Respon-
dent’s Br. at 18, 20, 21. Under the totality of the circum-
stances, and absent countervailing evidence either known or
that should have been known indicating that Crippen, despite
his recent acquisition of a tool of war, would not react
violently, the police did not need to have information that he
in fact had recently used firearms violently in order to
conclude that there were exigent circumstances justifying a
forced entry.
7
‘‘It is always somewhat dangerous to ground exceptions to
constitutional protections in the social norms of a given
historical moment. The purpose of the Fourth Amendment’s
requirement of reasonableness ‘is to preserve that degree of
respect for the privacy of persons and the inviolability of their
property that existed when the provision was adopted—even
if a later, less virtuous age should become accustomed to
considering all sorts of intrusion ‘‘reasonable.’’ ’ ’’ Richards,
520 U.S. at 393 n.4 (quoting Minnesota v. Dickerson, 508 U.S.
366, 380 (1993) (Scalia, J., concurring)). The knock and
announce requirements, incorporated into the Fourth Amend-
ment and 18 U.S.C. § 3109 from the common law, see Wilson,
514 U.S. at 931–34; United States v. Ramirez, 523 U.S. 65, 73
(1998), are vital to protecting ‘‘individual privacy interests,’’
Richards, 520 U.S. at 394, including a person’s house, which
the common law viewed as ‘‘ ‘his [or her] castle of defense and
asylum.’ ’’ Wilson, 514 U.S. at 931 (citing 3 William Black-
stone, Commentaries *288). Finding an exigency based on a
reasonable police conclusion concerning the violent character
of a person harboring multiple weapons, one of which is a
recently acquired tool of war, is different from finding an
exigency based on merely the presence of an ‘‘unconvention-
al’’ weapon that might be used against a ‘‘hardened target.’’
See op. at 6–7. The former bears an analogy to Geraldo
because it informs the police about Crippen’s possibly violent
character toward government agents; the latter addresses
the question left open in Geraldo, which the court purports to
leave open. See id. The inference about Crippen’s possible
inclination to react violently, not the mere presence of a
particular weapon, is the ‘‘something more’’ from which the
court can conclude that the hasty police entry is consistent
with avoidance of both unreasonable infringement of the
interests protected by the Fourth Amendment and the type
of blanket exception the Supreme Court rejected in Richards.
Accordingly, I concur in the judgment affirming the convic-
tion.