United States v. Antrim

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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