United States v. Sargent

United States Court of Appeals
For the First Circuit

No. 02-1839

UNITED STATES OF AMERICA,

Appellant,

v.

ROSCOE B. SARGENT,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.

F. Mark Terison, Senior Litigation Counsel, with whom
Paula D. Silsby, United States Attorney, was on brief, for
appellant.

Brett D. Baber, with whom Baber & Weeks, P.A. was on
brief, for appellee.

February 5, 2003
 LYNCH, Circuit Judge. The question on appeal is whether

the district court erred in suppressing evidence obtained in a

search of an apartment, pursuant to a warrant. The suppression

order was based on the brief amount of time -- five seconds --

between the police officers' knock and announcement and the forced

entry into the apartment. Based on the circumstances showing a

threat to the safety of the police officers, we hold the

suppression order was in error and reverse.

I.

There is no material dispute as to the facts found by the

trial court.

At about 7:30 p.m. on December 29, 2000, Special Agent

Andrew Miller of the Maine Drug Enforcement Agency (MDEA) sought a

search warrant for Roscoe Sargent's apartment in state court, based

on information that Miller had received from a confidential

informant (CI) only hours before. As his affidavit in support of

the warrant stated, that very afternoon a reliable CI had made a

purchase of drugs from Sargent at his apartment in Bangor. The

controlled buy was recorded through a body microphone worn by the

CI; Miller also surveilled the drug purchase from outside the

apartment. During the buy, Sargent confirmed that he had a couple

of pounds of marijuana and some psilocybin mushrooms for sale.

Because of recent MDEA drug busts in the area, Sargent said that he

wanted to "dump" (i.e. sell quickly) everything he had and get out

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of the business until things cooled down. Sargent asked the CI to

help him sell the drugs quickly. The CI said that Sargent

retrieved the drugs from a large safe, four feet by three feet by

three feet, which looked as though it was full of drugs.

Agent Miller did not request a no-knock warrant.1 The

warrant was issued at 7:35 p.m. and, because it was a "daytime"

warrant, had to be executed by 9:00 p.m.2

Miller asked the Bangor Police Department's Tactical Team

to help him execute the warrant because he had safety concerns, and

he briefed the team on those concerns. He had reason to believe

that a large number of knives was dispersed throughout Sargent's

small, two-room apartment, and that there also might be firearms.

This information was not in the warrant, and we infer it came from

the CI. Miller later testified at the suppression hearing, "The

intelligence that I had received was that anywhere that Mr. Sargent

was in the apartment that he could put his hand on a knife."

1
Miller testified that the reason he did not seek a no-
knock warrant was the need for speed: he applied for a daytime
warrant around 7:30 p.m., he had to go to the police
department and get the Tactical Team ready to execute the
warrant before 9:00 p.m., and he had one other warrant to
execute that evening.
2
One might inquire why Miller did not request a nighttime
warrant for the search of Sargent's apartment. Under Maine
law, it is more difficult to obtain a nighttime warrant.
Further, there is an increased danger to police officers that
accompanies nighttime raids. Whatever the reason, he did not
request a nighttime warrant, and so Maine law forbade its
execution after 9:00 p.m.

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 That same evening, December 29, 2000, Miller and ten

police officers from the Tactical Team executed the search warrant.

The role of the Tactical Team, according to Bangor Police Officer

Gregory Sproul, a member of the team, was "to make the entry,

secure the premises and the people within the residence, and then

turn it over to MDEA," which would search for illegal narcotics

pursuant to the search warrant. At about 8:30 p.m., the group of

ten police officers arrived at Sargent's apartment building,

entered it, and proceeded down a hallway toward his unit.

Sproul testified at the hearing that upon reaching

Sargent's apartment door, both he and another officer, John

Heitmann, announced their presence by yelling words to the effect

of "Bangor police, search warrant, open the door." At the same

time, they knocked on the apartment door. The police officers then

waited approximately five seconds. Sproul testified that he

thought that five seconds was an appropriate amount of time to wait

because he had "safety concerns," and because he had not heard

anyone inside respond or make any motion to comply with their

request to open the door. After the five second delay, Officer

Sproul gestured to the "breaching man," Officer Al Hayden, who then

smashed open the apartment door with a single stroke of a battering

ram.

The apartment was too small for all of the officers to

enter. Some of the officers entered the apartment and found

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Sargent near the doorway; indeed, any place in the apartment was

close to the door of the unit. A search of the apartment revealed,

as expected, a cache of marijuana and psilocybin mushrooms.

Officers also discovered, as expected, multiple knives and a

firearm, a shotgun. There were knives throughout the apartment, in

a variety of locations, including one stuck in the arm of the chair

where Sargent had been sitting when the officers approached his

door.

Sargent and his girlfriend, Heather Fliegelman, both

testified that they had been sitting inside the small apartment's

front room when they heard, in Sargent's words, "a lot of racket

out in the hallway." Sargent rose out of his chair to investigate

the noise. As he approached the apartment door, Sargent heard the

police officers announcing their presence. Sargent testified that

"I hollered that I was opening the door, and I got the door

unlocked, but I didn't have a chance to even turn the doorknob

because they smashed the door in without giving me a chance."

Officer Sproul testified that he did not hear any declaration from

Sargent that he was in the process of opening the door.

II.

At the trial level, the courts addressing this issue were

of different minds. The magistrate judge heard testimony on the

defendant's suppression motion from Miller, Sproul, Sargent, and

Fliegelman. In a thoughtful opinion, the magistrate judge

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recommended denial of the motion to suppress, finding the officers'

safety fears both genuine and legitimate and the speed of their

actions reasonable in context. The magistrate judge analyzed the

case as a de facto "no-knock" case. United States v. Sargent, No.

01-14-B-S, 2001 U.S. Dist. LEXIS 5977, at *5-*7 (D. Me. Apr. 30,

2001). The district judge agreed with the magistrate judge's

recommendation and denied the motion on May 31, 2001.

In a subsequent opinion issued on July 12, 2001, the

district judge, sua sponte, granted the motion to suppress,

concluding that he was compelled to do so by the opinion of a panel

of this court in United States v. Brown, 251 F.3d 286 (1st Cir.

2001). United States v. Sargent, 150 F. Supp. 2d 157 (D. Me.

2001). The panel opinion in Brown, though, was not the last word;

rather, it was withdrawn, as is customary, when this court granted

en banc review. United States v. Brown, 263 F.3d 1 (1st Cir.

2001). The en banc hearing in Brown ended in a tie vote, which

reinstated the district court's denial of suppression in that case.

United States v. Brown, 276 F.3d 14 (1st Cir. 2002).

Meanwhile, the government had appealed the grant of

Sargent's motion to suppress. When the en banc result was reached

in Brown, the government asked us to vacate the suppression order

and remand this case to the district court to reconsider. We did

so. United States v. Sargent, No. 01-2072 (1st Cir. Apr. 18,

2002). On remand, the district court reached a prompt decision and

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maintained its second position granting the motion to suppress.

United States v. Sargent, No. 01-CR-14-B-S (D. Me. May 28, 2002).

It held this search was, de facto, a no-knock entry and that

exigent circumstances did not justify the search. Id., slip op. at

4.

III.

This court reviews de novo the ultimate conclusion as to

whether a search was reasonable within the meaning of the Fourth

Amendment. Ornelas v. United States, 517 U.S. 690, 700 (1996).

Subsidiary factfinding by the district court is subject to review

only for clear error. United States v. Meade, 110 F.3d 190, 193

(1st Cir. 1997). It is evident that the factual findings here are

not clearly erroneous. There is no real dispute about the facts.

The only dispute is whether the facts lead to the conclusion that

the search was unreasonable.

Police acting under a warrant usually are required to

announce their presence and purpose, including by knocking, before

attempting forcible entry, unless circumstances exist which render

such an announcement unreasonable. See Wilson v. Arkansas, 514

U.S. 927, 936 (1995). Wilson incorporated the common-law "knock

and announce" rule into the Fourth Amendment reasonableness

inquiry. Id. at 929. In Richards v. Wisconsin, 520 U.S. 385

(1997), a unanimous court held unconstitutional a blanket rule

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which avoided the case-by-case reasonableness inquiry and suspended

the knock and announce rule for felony drug cases. Id. at 392-94.

The common law knock and announce requirement recognizes

the deep privacy and personal integrity interests people have in

their homes.3 It also serves to protect the safety of police

officers by preventing the occupant from taking defensive measures

against a perceived unlawful intruder. See W.R. LaFave, Search and

Seizure § 4.8(a), at 599 (3d ed. 1996). The common law recognized,

however, that the presumption in favor of announcement "would yield

under circumstances presenting a threat of physical violence."

Wilson, 514 U.S. at 936.

A very precise Fourth Amendment question is presented in

this case. There is no question about whether probable cause

existed or whether the warrant was properly executed. There is no

question about delay in exercising the warrant, about whether it

was executed late at night, or about whether the warrant was valid.

3
These interests have long been protected.
But before [the sheriff] breaks [the door], he ought
to signify the cause of his coming, and to make
request to open doors . . . , for the law without a
default in the owner abhors the destruction or
breaking of any house (which is for the habitation
and safety of man) by which great damage and
inconvenience might ensue to the party, when no
default is in him; for perhaps he did not know of
the process, of which, if he had notice, it is to be
presumed that he would obey it . . . .
Semayne's Case, 77 Eng. Rep. 194, 195-96 (K.B. 1603) (quoted
in Wilson, 514 U.S. at 931-32).

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There is no question about whether the police knocked or whether

their announcement was improper; the announcements were adequate to

alert the inhabitants inside. The only question is whether the

choice of the police officers to gain forcible entry after hearing

no response within five seconds was unreasonable under the Fourth

Amendment.

There have certainly been cases in which such short waits

were held unreasonable. See, e.g., United States v. Granville, 222

F.3d 1214, 1218 (9th Cir. 2000) ("Under the facts of this case,

five seconds cannot be considered 'a significant amount of

time.'"); United States v. Lucht, 18 F.3d 541, 550-51 (8th Cir.

1994) (three to five seconds unreasonable); United States v. Marts,

986 F.2d 1216, 1217, 1220 (8th Cir. 1993) (less than five seconds

unreasonable); West v. United States, 710 A.2d 866, 869 (D.C. 1998)

(five seconds unreasonable); Commonwealth v. Means, 614 A.2d 220,

222-23 (Pa. 1992) (five to ten seconds unreasonable). These

rulings are highly contextual, turning on factors that indicate

whether the amount of time given was enough for the defendant to

ascertain who was at the door and to respond, see Granville, 222

F.3d at 1218, and whether officers' safety was at risk, see Lucht,

18 F.3d at 551.

The general rule requiring announcement is itself simply

part of the broader Fourth Amendment reasonableness inquiry.

Wilson, 514 U.S. at 929. Wilson and Richards, which concern police

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entries made without any announcement, are thus highly pertinent to

the analysis here. The same interests identified in those cases

are at issue in this one. "[T]he common law recognized that

individuals should have an opportunity to themselves comply with

the law and to avoid the destruction to property occasioned by a

forcible entry. These interests are not inconsequential."

Richards, 520 U.S. at 393 n.5 (citing Wilson, 514 U.S. at 930-32).

Sargent's argument is that he was denied just such a reasonable

opportunity to comply with the law and open the door to permit

entry.

In order to justify entry without knocking on the basis

of concern for officers' safety, the police must "have a reasonable

suspicion that knocking and announcing their presence, under the

particular circumstances, would be dangerous." Richards, 520 U.S.

at 394. The Supreme Court in Richards imported the "reasonable

suspicion" test from Terry v. Ohio, 392 U.S. 1 (1968), which

requires that an officer "be able to point to specific and

articulable facts," id. at 21, and have "at least a minimal level

of objective justification," Illinois v. Wardlow, 528 U.S. 119, 123

(2000).

When circumstances lead officers to wait a shorter period

of time between the knock and announcement and the forced entry,

the no-knock "reasonable suspicion" analysis is appropriate as

well. The officers, at the time of entry, must have articulable

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facts concerning, for example, danger to themselves or destruction

of evidence, which lead them to believe they can wait no longer.4

This analysis applies the same reasonable suspicion standard to a

short pause between announcement and entry as to a true unannounced

entry; the government agrees that this standard is the appropriate

one. But there is a practical difference. In the case of a brief

but real pause, the officers know one additional fact: that their

announcement has not been answered. Combined with other factors,

that can be enough to engender reasonable suspicion and permit

forced entry.

The magistrate and district court judges analyzed this

case as a de facto no-knock case. In determining whether the

police could enter unannounced, the judges considered only the

evidence the police had at the time they approached Sargent's door.

However, the presence of a reasonable suspicion of danger is

properly analyzed at the time of entry. At that moment, the

officers knew what they knew earlier -- that there were numerous

readily available weapons and drugs in a very small apartment --

but they also knew for the first time that they heard no answer to

their knocks and yells. The five second delay, combined with the

4
Even absent these types of circumstances, there is a
limit to how long police must reasonably wait. Entrance must
be refused, see 18 U.S.C. § 3109 (2000); Wilson, 514 U.S. at
932, but silence may be construed as refusal, Granville, 222
F.3d at 1218.

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factors we describe below, amounted to a reasonable suspicion of

danger.

Despite the brevity of the period between announcement

and entry there was, on these facts, no violation of the Fourth

Amendment reasonableness standard. There are two key issues:

whether it was reasonable for the police to expect a response

within five seconds after the announcements, and whether it was

reasonable for the police to fear a threat to their safety given

the circumstances. The government agrees that both of these issues

must be answered affirmatively for this search to be reasonable.

We conclude that it was objectively reasonable for the

officers executing the warrant to think that:

1. Sargent was at his apartment, given that he was dealing drugs

that afternoon from the apartment;

2. Sargent was awake and dressed at the time, between 8:30 and 9

p.m.;

3. Sargent had heard the two officers when they knocked, and each

announced, given the small size of the apartment and the fact that

the police were yelling;

4. Sargent may well have been alerted earlier when there was noise

as eleven officers and a battering ram entered the small hallway

outside his apartment (as he was in fact alerted);

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5. Sargent thus had time to respond either verbally or by opening

the door in the five seconds after the announcements and before the

battering ram broke down the door, but he had not done either;

6. The police were at real risk because of the presence of knives,

and possibly a gun, in the apartment, within easy reach for use

anywhere in the apartment;

7. The very presence and location of so many knives was bizarre

and Sargent's response to police entry could also be bizarre;

8. The knives and possible gun in the apartment were meant for use

as weapons, given the significant quantities of drugs in the

apartment and the apartment's use to stash drugs;

9. Sargent might try to avoid arrest, as he was aware of recent

MDEA drug busts and told the CI he wanted to get away;

10. The risk to the officers increased with each second that

Sargent did not respond after he had an opportunity to do so.

Objectively, the officers had reasonable suspicion that

their safety would be threatened by further delay. The presence of

all of these factors convinces us the search was constitutionally

reasonable, despite the five second interval, in light of the

threat to the safety of the officers.5

Absent that threat, the constitutional calculus in this

case might be quite different. One purpose of the knock and

5
The government has not attempted to justify the short
period on the ground that it was needed to prevent the
destruction of evidence.

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announce requirement is to permit occupants a reasonable period of

time to permit the police to enter. We share the district court's

assessment that serious Fourth Amendment concerns are validly

raised when the response time between announcement and entry is so

truncated.

There are no bright line rules about the amount of time

officers must wait after they announce. Any "five second" or "ten

second" categorical rule would be impermissible for the same

reasons the categorical rule in Richards was impermissible. The

rejection of per se rules works both ways. Just as no defendant

should take comfort that a five second wait is per se unreasonable,

no police department should take comfort that a ten or twenty

second wait is reasonable or generally acceptable. The

reasonableness inquiry requires that each case be analyzed on its

own facts. United States v. Spikes, 158 F.3d 913, 926 (6th Cir.

1998) ("The Fourth Amendment's 'knock and announce' principle,

given its fact-sensitive nature, cannot be distilled into a

constitutional stop-watch where a fraction of a second assumes

controlling significance.").

This court's precedents support the reasonableness, in

context, of this search. This court has upheld an entry at a side

door five to ten seconds after officers knocked and where other

officers at the front door had previously started knocking, and

where there were justifiable fears that the occupants would flush

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drugs down the toilet. United States v. One Parcel of Real Prop.,

Etc., 873 F.2d 7, 9 (1st Cir. 1989). The court held it was

reasonable for the officers to conclude an additional wait would be

fruitless. Id. at 9-10. In United States v. Garcia, 983 F.2d 1160

(1st Cir. 1993), this court upheld as reasonable a wait of ten

seconds after knocking when the contraband could be disposed of

easily. Id. at 1168; see United States v. DeLutis, 722 F.2d 902,

908-09 (1st Cir. 1983) (twenty second wait not unreasonable); see

also United States v. Lipford, 203 F.3d 259, 270 (4th Cir. 2000)

(five second wait reasonable where occupant had opened the door

more quickly just before and where there was a risk of destruction

of evidence); United States v. Markling, 7 F.3d 1309, 1318 (7th

Cir. 1993) (seven second wait sufficient before entry into small

motel room).

We emphasize that there is no requirement that officers

serving a search warrant have evidence of the defendant's prior use

of violence or even of his particularized propensity for violence

in order for exigent circumstances to exist. Such evidence will,

of course, make it easier to establish a reasonable suspicion of a

threat. But the absence of such evidence does not establish there

is no reasonable suspicion of a threat. Nonetheless, the district

court discounted the threat to the officers here, saying:

[T]he evidence the police possessed at the time they
entered Defendant's residence was insufficient to support
a reasonable suspicion of danger. The officers were
aware only that Defendant possessed a number of knives

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 that were easily accessible, and that Defendant
distributed drugs from his residence. Those two facts do
not support a reasonable inference that the police, by
knocking and announcing their presence, would place
themselves in harm's way. Many people own all manner of
knives for general purposes, and in a small apartment
such as Defendant's it would not be unusual for the
occupant to be able to reach a knife quickly. Although
it is true that the police suspected that Defendant
distributed drugs from his residence, there is no
evidence on the record tending to draw a connection
between Defendant's ownership of knives and the drug
sales.

These conclusions are error for a variety of reasons. It

is not common for people to keep so many knives in so many places

in their homes that a knife is always within easy reach. To the

contrary, such behavior is bizarre. These knives were weapons.

The fact that the police knew the knives were there most likely

meant that the CI had seen them openly displayed throughout the

apartment. Since Sargent was an active drug dealer with a

substantial stock of drugs and weapons at hand, there was adequate

reason to think the knives were intended to convey a message that

Sargent would protect himself and his drugs. The message sent by

the presence of the knives was reinforced by the suspected presence

of a gun, later verified.

The knives and the possible firearm posed a real danger

to the police on any objective analysis. If Sargent chose to

fight, the police were at risk of injury or death. They had reason

to fear a knife fight in close quarters, with Sargent having the

advantage: he knew both the layout of the place and the location

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of the knives; the officers did not. Even though their numbers

gave them an advantage, this did not foreclose the real possibility

of serious injury to one or more officers.

Finally, the fact that there was no response from Sargent

-- either verbal or physical by opening the door -- for five

seconds after the announcement by two officers has significance.

It was entirely reasonable for the officers to become increasingly

nervous. The small size of the apartment meant that the five

seconds after knocking with no response was even more ominous. The

officers' fears were genuine, and there was a genuine basis for

them. By adopting its view that this was de facto a no-knock case

and should be analyzed as such, the district court was led to

overlook this last important factor -- the lack of response from

Sargent.

The allowance of the motion to suppress is reversed, the

motion should be denied and the case is remanded for further

proceedings.

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