dissenting:
I respectfully dissent. In my view, the denial of defendant’s motion to suppress was error because the district court’s conclusions that the law enforcement officers’ break-in either was in compliance with the so-called “knock and announce” statute or was a violation justified by exigent circumstances are contradicted by the court’s findings of fact.
The “knock and announce” statute provides that a person authorized to execute a federal search warrant may break into the targeted dwelling “if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” 18 U.S.C. § 3109 (1988). The language of this section indicates that, absent the need for “liberat[ion]” of one executing the warrant, the break-in is to be preceded by notice and a refusal of admittance; thus, absent compelling circumstances, there must be some pause to allow the occupants an opportunity to admit the officers without having the door broken in. See, e.g., United States v. Mendonsa, 989 F.2d 366, 370 (9th Cir.1993) (“absent exigency, there must be explicit refusal or lapse of a significant amount of time before officers may forcibly enter the premises”); United States v. Marts, 986 F.2d 1216, 1217-18 (8th Cir.1993) (lapse of less than five seconds held not sufficient to infer refusal of admittance necessary to comply with § 3109); United States v. Nabors, 901 F.2d 1351, 1355 (6th Cir.) (“[cjases in which officers make a forced entry seconds after announcing their authority and purpose” must be “carefully scrutinized ... to determine whether there is compliance with § 3109”), cert. denied, 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990). Section 3109 reflects “ ‘the reverence of the law for the individual’s right of privacy in his house,’ ” a reverence that is “ ‘deeply rooted in our heritage and should not be given grudging application.’ ” Sabbath v. United States, 391 U.S. 585, 589, 88 S.Ct. 1755, 1758, 20 L.Ed.2d 828 (1968) (quoting Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1198, 2 L.Ed.2d 1332 (1958)).
Evidence seized following a break-in that failed to comply with § 3109 need not be suppressed if the noncompliance was excused by exigent circumstances. See, e.g., Sabbath v. United States, 391 U.S. at 591 & n. 8, 88 S.Ct. at 1759 & n. 8. However, exigent circumstances may excuse noncompliance with the knock-and-announce requirement only if the officers believed that there was an emergency situation, and their belief was objectively reasonable. See, e.g., United States v. Spinelli, 848 F.2d 26, 29 (2d Cir.1988); United States v. Mendonsa, 989 F.2d at 370 (“specific inferences of exigency” are required); see generally United States v. Lucht 18 F.3d 541, 548-51 (8th Cir.1994).
In the present case, the district court concluded that because the drugs for which the officers were to search were capable of destruction, and because the officers knew that one of the anticipated occupants, Timothy Ellison, had a record for arrests involving violent crimes and had recently sought to collect a drug debt using a gun, the “totality of the circumstances” created “an emergency situation,” or “sufficient exigent circumstances,” justifying the officers in breaking into the premises simultaneously with their knock at the door. (Hearing Transcript, November 25, 1992 (“Tr.”), at 149.) The court correctly noted that “the mere fact of execution of a warrant concerning the search for drugs is not sufficient to justify any sort of a departure from the knock and announce statute.” (Tr. 145-46.) It nonetheless concluded that there was “a compliance with the knock and announce rule, which was so compressed in time that probably the people couldn’t truly respond” (Tr. 149), and that the “simultaneous[ ] break-in ... [wajs justified by the subjective knowledge that the officers had and their objective belief that there was a potential danger to them and a risk that the evidence would be destroyed” (Tr. 150). The court’s exigent-circumstances and objective-*429reasonableness conclusions, however, did not comport with its findings of fact.
The district court made the following factual findings with respect to this break-in, which occurred at 6 a.m.:
—“the break-in was virtually simultaneous with the announcement” (Tr. 149);
—because of that simultaneity, “the people couldn’t truly respond, certainly to the announcement” (id.)-,
—indeed, “it may well have been that the knock did not wake anybody in the apartment” (id.);
—there was “no evidence in this case that the officers had any reason to believe that the persons within knew of their authority or purpose” (Tr. 147);
—“I do not believe that [the officers] could see inside the apartment or that the apartment was lighted” (id.);
—“I specifically do not find that the officers could see into the apartment or that they had any facts when they were about to enter the apartment that would suggest that the persons within were engaged in any activity to destroy evidence” (Tr. 145);
—“there isn’t any evidence to suggest that the persons within were in any sort of peril” (Tr. 147); and
—“there is no evidence that suggests that at the time when the officers were outside of the apartment, that there was any activity going on inside of it that justified a belief that there was an escape or the destruction of evidence” (Tr. 148).
To the extent that the court ruled that the officers had complied with § 3109, its conclusion is contradicted by its findings, inter alia, that the break-in was simultaneous with the knocking, rather than “after” notice and refusal of entry, and that the break-in was not needed to “liberate” anyone.
To the extent that the court ruled that exigent circumstances justified noncompliance with § 3109, its conclusion is contradicted by its findings that the officers (a) could not see into the apartment, (b) could not see any lights, (c) had no reason to believe that the persons within knew of their authority or purpose, (d) had no reason to believe that the persons within were attempting to escape, and (e) had no reason to believe that the persons within were engaged in any activity to destroy evidence.
In the face of its explicit findings, the court’s ruling adopts a principle that when officers executing a search warrant for narcotics expect one of the persons inside the targeted dwelling to be one who likely possesses a gun and has a record of arrests involving violent crimes, they are entitled to break in simultaneously with the announcement of their presence and authority. Though I do not suggest that compliance with § 3109 required the officers to do more than pause briefly to see whether the occupants would promptly admit them, I do not agree that the section authorized simultaneous knocking and breaking in; and I do not agree that the circumstances found here warranted disregard of the requirement that the officers pause between their announcement and their breaking in.
Accordingly, I conclude that the suppression motion should have been granted and that defendant should have a new trial.