(concurring and dissenting):
I join in the court’s conclusion that there is adequate evidence of possession, but I do not think the remand directed by it is essential to a fair disposition of this appeal.
As this and other courts have recognized, the “refused admittance” component of 18 U.S.C. § 3109 stands on a different practical footing from the other requirement of “notice of [police] authority and purpose.” To establish the latter, there must be proof of affirmative action by the police, whereas in the case of the former, particularly in the narcotics context, explicit verbal response is hardly to be expected. In such circumstances the statute can only be, but is properly, satisfied by evidence of non-verbal conduct indicating a lack of purpose promptly to respond to the police announcement.1
The central question pressed upon the District Court, and here, with respect to *82the legality of the entry was the alleged inadequacy of the police announcement of notice of authority and purpose; and the District Court memorandum opinion entered the day after the hearing on the suppression motion is addressed in terms to this question. But there is enough in that opinion, in my judgment, to warrant our being satisfied that the court was amply aware of the “refused admittance” requirement and fully persuaded that admission had been refused within the meaning of the statute. An examination of the transcript of the evidentiary hearing on the suppression motion shows that the court repeatedly focused upon the evidence relating to what happened immediately after the police had made their announcement as it bore on the danger of destruction of narcotics; and, in the memorandum denying the motion entered the next day, a key finding was
“At about this time they [the police] heard hurried movement within the apartment, a stirring, sort of shuffling, which one of the detectives considered movement away from the door. After a further delay of some ten or fifteen seconds, the door was broken open with a sledge hammer.”
Further on in its memorandum the court said that “The [police] announcement apparently was understood by defendant since he immediately undertook to conceal the narcotics in his possession.”
This finding and comment are obviously responsive to our statement in Masiello, quoted in the majority opinion, that “Where, as here, after giving the required notice the officers hear sounds, which indicate to them that the evidence sought by the warrant may be in process of destruction, execution of the warrant need not be deferred long enough to allow completion of the process.”
I think the evidence here clearly shows “refused admittance,” as contemplated by the statute, and that we do not need a remand to enable us to be sure that the district judge was of the same view.
. A recent statement of the law in this regard is contained in United States v. Ortiz, 445 F.2d 1100, 1102 n. 2 (8th Cir. 1971), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971):
The phrase “refused admittance” is not restricted to an affirmative refusal. United States v. Chambers, 382 F.2d 910 (6th Cir. 1967); Masiello v. United States, 115 U.S.App.D.C. 57, 317 F.2d 121 (1963). Rarely if ever is there an affirmative refusal. More often the officers meet with silence as the occupants seek to destroy evidence or escape. Accordingly, whether the failure to respond to an officer’s knock constitutes refused admittance is a question of the circumstances. See United States v. Augello, 368 F.2d 692 (3rd Cir. 1966); McClure v. United States, 332 F.2d 19 (9th Cir. 1964).
Ortiz upheld the execution of a search warrant by narcotics agents at 6:45 A.M. on their testimony that, when there was no “immediate response” of a j kind to their announcement, the door was forced.