United States Court of Appeals
For the First Circuit
No. 03-1558
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN R. ANTRIM,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Richard M. Welsh for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
November 24, 2004
CYR, Senior Circuit Judge. Following the entry of a
conditional guilty plea to a single count of being a felon in
possession of a firearm, defendant-appellant John R. Antrim
challenges the district court ruling which rejected his motion to
suppress certain evidence seized pursuant to a search warrant from
his residence. As we discern no error, we affirm the district
court judgment.
I
BACKGROUND
We view the record facts in the light most favorable to
the district court's decision to deny Antrim’s motion to suppress
the evidence. See United States v. Kimball, 25 F.3d 1, 3 (1st Cir
1994). On October 25, 2001, officers of the Boston Police
Department Drug Control Unit obtained a search warrant for Antrim’s
East Boston apartment, based upon probable cause to believe that
Antrim and a male associate were utilizing the apartment as a base
for heroin distribution. Although the police had received an
uncorroborated tip that Antrim might have a gun in the apartment,
they did not request that the magistrate make any mention of the
firearm in the search warrant. During the evening, the police
observed Antrim as he left the apartment and drove away in his car.
Due to their concerns that Antrim might return to the apartment
unexpectedly during the course of the search, and thus pose a
safety risk to the searching officers, the police pulled Antrim
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over as he was about to enter the Sumner Tunnel. After Antrim had
been placed under arrest, he informed the police that his
girlfriend, Musetta Bavaro, was alone back at his apartment, and
that there was a gun and some heroin in a safe at the apartment.
Thereupon, Antrim surrendered the keys to both the apartment and
the safe.
Upon returning to the apartment, the police announced
their presence by knocking and yelling “Boston police, search
warrant.” After waiting 5 to 10 seconds without a response, an
officer attempted to open the door with the key obtained from
Antrim, but dropped the keys on the floor. After picking up the
keys – which took him 17 to 26 seconds – the officer again yelled
“Boston police, search warrant,” then opened the apartment door
with the key. The officers observed Bavaro as she approached the
apartment door, then handcuffed her and forced her to lay face down
on the floor. While other officers were searching the apartment,
one remained in the kitchen with Bavaro, and briefly held up the
warrant for her to inspect, but without handing her the copy. The
police believed that the warrant remained on the table upon their
departure following the search, whereas Bavaro claims she never
found it. The police seized heroin and drug paraphernalia, as well
as the gun, from Antrim’s safe.
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After Antrim was indicted on one count of being a felon
in possession of a firearm, see 18 U.S.C. § 922(g),1 he submitted
a motion to suppress the firearm seized from the apartment,
contending that the officers failed (i) to comply with the knock-
and-announce rule, (ii) to provide Bavaro either with a copy of the
search warrant or a receipt for the gun, or (iii) to obtain an
amended search warrant after the officers had learned from Antrim
that he kept a gun in the safe located in his apartment.
Following an evidentiary hearing, the district court
granted the motion to suppress the post-arrest statements Antrim
made to police on the ground that the warrantless arrest was
unsupported by probable cause. The court rejected the motion to
suppress the firearm seized pursuant to the warrant, however, and
in due course Antrim entered a conditional guilty plea. Antrim now
appeals from the conditional judgment of conviction.
II
DISCUSSION
A. Compliance with the Knock-and-Announce Rule
Antrim first contends that the district court erred in
ruling that the police officers waited a reasonable interval
between their “knock and announce[ment]” and their forcible entry
into the Antrim apartment. He insists that the evidence
1
The appellate record does not indicate whether the
Commonwealth has charged or will charge Antrim in connection with
his possession of the drugs seized from his apartment.
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demonstrates that (i) the police waited a mere 5 seconds,
notwithstanding the fact that Antrim was already in police custody
– thus could neither pose a threat to the search team nor destroy
evidence located in the apartment – and (ii) the police had no
reason to believe that Ms. Bavaro was an accomplice in drug
trafficking who possessed a motive either to use the weapon against
the police or to destroy evidence.
As a general rule, in executing a search warrant police
officers must announce their presence to possible occupants prior
to attempting a forcible entry, and the length of the police delay
in entering the premises – to enable any occupants to respond –
must be a “reasonable” one in the particular circumstances. See
United States v. Sargent, 319 F.3d 4, 8 (1st Cir.), cert. denied,
124 S. Ct. 920 (2003).2 The common-law “knock-and-announce” rule
is designed to (i) protect whatever privacy interests the occupants
may have in the residence, (ii) permit the occupants voluntarily to
open the door so as to avoid damage to the property in the course
of a forcible entry by the police and (iii) prevent occupants from
initiating defensive measures against the police in a mistaken
belief that the person attempting entry may be an unlawful
intruder. See Wilson v. Arkansas, 514 U.S. 927, 932 (1995). There
2
As both "no-knock" and "knock-and-announce” cases turn upon
the identical reasonableness inquiry, decisions involving both
types of searches are cited interchangeably. See Sargent, 319 F.3d
at 8.
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is no bright-line rule regarding the length of time the police must
postpone a forced entry following their announcement; instead, each
case is to be assessed on the totality of its circumstances. See
Richards v. Wisconsin, 520 U.S. 385, 394 (1997); United States v.
Spikes, 158 F.3d 913, 926 (6th Cir. 1998) (observing that fact-
intensive reasonableness inquiry cannot be “distilled into a
constitutional stop-watch where a fraction of a second assumes
controlling significance”). The reasonableness of a search
executed pursuant to a warrant is reviewed de novo, whereas any
predicate findings of fact are reviewed only for clear error. See
Sargent, 319 F.3d at 8.
At the outset, we address the predicate district court
finding that the police delayed no less than 15 to 20 seconds after
knocking and announcing their presence before entering. We discern
no clear error. The record on appeal simply does not support the
Antrim contention that the police delayed a mere five seconds
between their announcement and their entry.
Officer Knecht, the front man on the stairway and the one
charged with making the announcement, testified that he knocked and
announced, then waited 5 to 10 seconds before trying the key in the
lock. Then, he dropped the keys on the floor, bent down to recover
them, inserted the key in the door, and, 3 to 4 seconds later,
opened the door while in the process of making a second
announcement. The elapsed time between dropping the keys and
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opening the door was 20 to 30 seconds.3 Accordingly, the total
elapsed time between the first announcement and the opening of the
door approximated 25 to 40 seconds.
Lieutenant O’Toole – who was in charge of the entry team
and had positioned himself farther down the narrow staircase as
Officer Knecht was engaged in these actions – corroborated Knecht’s
version of the events. Lieutenant O’Toole did not testify that
Knecht made the first announcement, nor did he testify that Knecht
did so. Instead, he testified that Knecht dropped the keys, and
defense counsel did not pursue the matter concerning whether
Lieutenant O’Toole heard the first announcement.4 O’Toole
described a significant time interval between Knecht's dropping of
3
However, Officer Knecht’s testimony did contain a slip of the
tongue:
Q: How long did it take you between the time of putting the
keys in the lock and opening the door had passed?
A: The original – when I dropped the keys, there was a time
I actually got the door closed, approximately 20 to 30
seconds.
Given the plain thrust and context of the question put to him,
however, it is readily apparent that Knecht simply misspoke in
stating "door closed" rather than “door opened.”
4
In fact, subsequently Lieutenant O’Toole suggested that
Officer Knecht did in fact make two announcements:
Q: And what was that announcement?
A: “Boston Police, search warrant.”
Q: And then what?
A: Waited a few seconds, turned the key, “Boston Police,
search warrant,” and made entry.
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the keys and opening of the door, noting that Knecht twice tried
the key in the door before he succeeded in opening it (“I believe
he put [the key] in twice to see if it actually worked.”). O’Toole
testified specifically that Knecht did "knock and announce" after
retrieving the keys from the floor, then opened the door 3 to 4
seconds later. On this record, therefore, we can find no clear
error in the district court’s finding of fact, particularly since
the evidence plainly established that the total elapsed time
between the first announcement and the opening of the apartment
door was no less than 25 to 40 seconds, as contrasted with the
five-second lapse Antrim posits on appeal.
The fact that the underlying crime involved drug
distribution – while not itself conclusive – nonetheless tends to
lessen the delay the officers reasonably were required to allow
following their announcement and prior to their forced entry. See
Spikes, 158 F.3d at 926 (noting that occupants may easily dispose
of drugs during delay). Although the virtually limitless variety
in the circumstances confronting law enforcement officers in these
cases plainly precludes any mathematical rule, frequently the
courts have approved brief delays in the 15-to-20-second range or
less in fairly typical drug cases, see, e.g., United States v.
Banks, 540 U.S. 31, 38 (2003) (15-20 seconds); United States v.
Jones, 133 F.3d 358, 361-62 (5th Cir. 1998) (15-20 seconds); United
States v. Bonner, 874 F.2d 822, 825 (D.C. Cir. 1989) (10 seconds);
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see also United States v. Pinson, 321 F.3d 558, 566 (6th Cir. 2003)
(noting precedents for 15-second delay), somewhat less than the 25-
to-40-second delay involved here. Moreover, it was clear as well
that the targeted drug (viz., packages of heroin) at the Antrim
apartment was of a readily disposable type. Cf. United States v.
Maher, 185 F. Supp. 2d 826, 832 (W.D. Mich. 2001) (noting absence
of such danger where police expect to seize large number of
marijuana plants).
Antrim argues, without citation to supporting authority,
that a longer delay was required before entry due to the fact that
the police lacked any reasonable suspicion that Bavaro had
participated in Antrim’s drug activities, hence could not
anticipate that Bavaro would destroy the drugs. This argument is
flawed as well, since even an occupant not complicit in the drug
crime may have some other strong motive to destroy evidence, such
as a sense of familial loyalty. Here, the police officers knew
that Bavaro was Antrim’s girlfriend. See, e.g., United States v.
Dickerson, 195 F.3d 1183, 1187 (10th Cir. 1999) (noting that
defendant’s mother, who was one of the occupants of the premises to
be searched, might destroy evidence); United States v. Alexander,
835 F.2d 1406, 1410 (11th Cir. 1988) (same, referring to
defendant’s brother “or another friend or family member”); United
States v. Warren, 181 F. Supp. 2d 1232, 1243 (D. Kan. 2001) (same,
referring to defendant’s wife). Furthermore, we have found no
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authority requiring that police officers have reason to believe
that a known occupant is an accomplice in the underlying offense.
Additionally, it is incorrect to suggest that the police
officers knew to a certainty that Bavaro was alone in the
apartment. Rather, the police knew that Antrim had a male
colleague, whereabouts unknown, who could have been in the
apartment with Bavaro. See United States v. Holmes, 175 F. Supp.
2d 62, 76 (D. Me. 2001) (noting that reasonableness of delay is to
be judged by knowledge of police at time of search, rather than in
hindsight). Although Antrim informed the police that Bavaro was
alone, surely police officers are not required to accept at face
value information provided by the suspect himself, particularly
where a well-timed lie might afford an accomplice the time needed
to destroy incriminating evidence. Although the police might have
had no reason to suspect that Bavaro would use a gun against them,
Antrim’s male accomplice could not only have harbored a motive to
destroy the evidence, but also have had access to the weapon in the
apartment safe. See Pinson, 321 F.3d at 567 (noting that presence
of weapon likely to be used by occupant justifies briefer delay in
forced entry).
Morever, these police officers had additional valid
reasons to suppose that a 25-to-40-second delay would be more than
adequate to afford Bavaro the opportunity voluntarily to respond to
the "knock and announcement." The four-room apartment was
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relatively small, see Sargent, 319 F.3d at 10 (noting “small size
of the apartment”); Bonner, 874 F.2d at 825 (same), there was no
background noise (e.g., television) such as might suggest to the
officers that Bavaro would have had any trouble hearing the police
announcements, see United States v. Jones, 214 F.3d 836, 844 (7th
Cir. 2000) (Coffey, J., concurring), nor was there any
acknowledgment by Bavaro that she was either going to answer the
door or not going to do so, see United States v. Lucht, 18 F.3d
541, 549 (8th Cir. 1994) (observing that an unreasonably prolonged
silence connotes occupant’s refusal to admit police); see also
United States v. Chavez-Miranda, 306 F.3d 973, 981 (9th Cir. 2002),
even after Officer Knecht announced twice, see Bonner, 874 F.2d at
825.
Additionally, the entry occurred at 7 p.m., shortly after
Antrim himself had left the apartment, rather than at a time of day
people are expected to be asleep or otherwise unable to respond to
the knock on the door in a reasonable time, see Chavez-Miranda, 306
F.3d at 981 (7:00 p.m.); see also United States v. Pennington, 328
F.3d 215, 221 (6th Cir. 2003) (3:45 p.m.), cert. denied, 124 S. Ct.
1039 (2004); Pinson, 321 F.3d at 567 (3:05 p.m.). Given the
totality of these circumstances, therefore, we cannot conclude that
the officers violated the knock-and-announce requirement after
waiting 25 to 40 seconds before effecting their forced entry.
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B. The Service of Search Warrant
Next, Antrim contends that the district court
erroneously ruled that the searching officers’ failure to provide
Bavaro a copy of the warrant at the time of the search was a mere
technical violation of Fed. R. Crim. P. 41(d),5 which did not
require suppression of the evidence subsequently seized in the
search. See, e.g., United States v. Gantt, 194 F.3d 987, 1002 (9th
Cir. 1999). This contention falters for at least two reasons.
First, Rule 41(d) applies exclusively to searches which
are “federal” in character. See United States v. Mitro, 880 F.2d
1480, 1484 (1st Cir. 1989); see also United States v. Palmer, 3
F.3d 300, 303 (9th Cir. 1993). Here, the state court issued the
search warrant for Antrim’s apartment, and state law enforcement
personnel executed the warrant. Antrim adduced no evidence that
federal law enforcement authorities either initiated or
participated in the search, nor that federal prosecutorial
authorities had any intention of using the state investigation to
charge Antrim in federal court. Consequently, Rule 41(d) is
inapplicable. See Mitro, 880 F.2d at 1485.
Second, even if the search were “federal” in character,
5
The version of Rule 41(d) applicable to this case provides,
in pertinent part, that "[t]he officer taking property under the
warrant shall give to the person from whom or from whose premises
the property was taken a copy of the warrant and a receipt for the
property taken or shall leave the copy and receipt at the place
from which the property was taken." Fed. R. Crim. P. 41(d).
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"'Rule 41(d) . . . does not invariably require that [federal
officers [] serve upon the person searched a copy of the warrant]
before the search takes place.'" United States v. Bonner, 808 F.2d
864, 869 (1st Cir. 1986) (citation omitted). Instead, a defendant
may suppress evidence only if Rule 41(d) noncompliance caused him
demonstrable “legal prejudice," id. (noting that legal prejudice
requires showing that defendant was “‘subjected to a search that
might not have occurred or would not have been so abrasive had
[Rule 41(d)] been followed’”) (citation omitted), or if police
noncompliance was deliberate and in bad faith, see United States v.
Dauphinee, 538 F.2d 1, 3 (1st Cir. 1976). Even assuming that these
police officers did not provide a copy of the warrant to Bavaro at
the time of the search, they believed they had done so, and they
did in fact provide her with a copy at the police station the same
evening. On appeal, Antrim points neither to any prejudicial legal
effect resulting from that minimal delay, nor to any evidence that
the police officers maliciously withheld the warrant from
inspection by Bavaro.
Accordingly, the district court did not err in declining
to suppress the evidence due to any police noncompliance with Rule
41(d).
C. Failure to Obtain Amended Warrant
Finally, Antrim maintains that the gun should be
suppressed because the police had received a tip – two days before
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obtaining the warrant – that Antrim might have a gun in the
apartment, yet never mentioned the gun in the warrant application,
and Antrim told the police at the time of his arrest that he kept
a gun in the apartment. Yet the police did not return to the
magistrate for an amended warrant listing the gun among the
articles to be seized. This argument fails as well.
"Plain view" seizures are lawful if (1) the seizing
police officer lawfully reached the position from which he could
see the item in plain view; (2) the seizure satisfied the probable
cause standard; and (3) the seizing officer had a "lawful right of
access to the object itself." United States v. Jones, 187 F.3d
210, 219-21 (1st Cir. 1999). The seizure of the Antrim weapon in
the course of the lawful search of the safe unquestionably
satisfied all three criteria.
Whether the discovery of the weapon by the police was
“inadvertent” is immaterial to the “plain view” inquiry:
The fact that an officer is interested in an
item of evidence and fully expects to find it
in the course of a search should not
invalidate its seizure if the search is
confined in area and duration by the terms of
a warrant or a valid exception to the warrant
requirement. If the officer has knowledge
approaching certainty that the item will be
found, we see no reason why he or she would
deliberately omit a particular description of
the item to be seized from the application for
a search warrant. Specification of the
additional item could only permit the officer
to expand the scope of the search. On the
other hand, if he or she has a valid warrant
to search for one item and merely a suspicion
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concerning the second, whether or not it
amounts to probable cause, we fail to see why
that suspicion should immunize the second item
from seizure if it is found during a lawful
search for the first.
Horton v. California, 496 U.S. 128, 138-39 (1990); see United
States v. Robles, 45 F.3d 1, 6 n.3 (1st Cir. 1995) (noting that
“‘inadvertence’ is no longer a necessary condition of a plain view
seizure”).6 In the instant case, the warrant authorized the police
to search the entire Antrim apartment for evidence of heroin
trafficking. During that lawful search, the police seized the
subject weapon in “plain view.” Consequently, whatever
foreknowledge the police may have had as to the probable location
of the weapon, no amendment of the original warrant was necessary.
Affirmed.
6
Prior to obtaining the warrant, the police admittedly
possessed no more than an uncorroborated tip that Antrim kept a
gun, and it is extremely unlikely that this tip could have given
rise to the requisite showing of probable cause. Further, Antrim
does not contend that disclosure of this tip would have dissuaded
the magistrate from issuing the warrant that he did.
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