UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 97-40235
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
VERSUS
REGINALD WAYNE JONES,
Defendant-Appellant
Appeal from the United States District Court
For the Eastern District of Texas
January 20, 1998
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:
I.
FACTS & PROCEDURAL HISTORY
Reginald Wayne Jones was charged in a three-count indictment
with possession of crack cocaine with intent to distribute,
possession of a firearm by a convicted felon, and possession of
ammunition by a convicted felon. Jones filed a motion to suppress
the evidence seized during the execution of a search warrant. At
the suppression hearing, Detective Alton James Baise testified that
he knocked on the door of Jones’ apartment and shouted “Police.
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Search Warrant.” The officers got no response, and after waiting
approximately 15 to 20 seconds, the officers entered the apartment.
Detective Baise explained that, pursuant to office policy, officers
wait no more than 20 seconds or so when executing a search warrant
for cocaine to protect against the destruction of evidence. Jones
did not dispute Detective Baise’s testimony but argued that 15 to
20 seconds was not a reasonable period to expect an occupant to
respond to an officer’s potentially unexpected announcement.
The district court denied Jones’ motion to suppress. The
court found that the officers had complied with the “knock and
announce” rule. The court noted that the evidence was undisputed
that the officers knocked on the door, announced “Police. Search
Warrant,” waited 15 to 20 seconds, and then walked into the
apartment. The court determined that 15 to 20 seconds was not an
unreasonable period, given the possibility that any drugs in the
apartment might be destroyed if the officers waited longer.
Thereafter, a jury convicted Jones of possession of crack
cocaine with intent to distribute, possession of a firearm by a
convicted felon, and possession of ammunition by a convicted felon.
Jones timely appealed to this Court challenging the denial of his
motion to suppress and the sufficiency of the evidence to support
his conviction.
II.
MOTION TO SUPPRESS
Jones argues that the “knock and announce” rule applies to
state officers and that these officers did not comply with the
“knock and announce” rule because they waited only 15 to 20
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seconds before entering the residence after knocking and announcing
their presence. Jones contends that there were no exigent
circumstances to justify their entry before he responded.
When the district court makes factual findings following a
pretrial hearing on a motion to suppress, this court reviews such
findings for clear error, viewing the evidence in the light most
favorable to the party that prevailed in the district court.
United States v. Inocencio, 40 F.3d 716, 721 (5th Cir. 1994).
Conclusions of law are reviewed de novo. United States v.
Cardenas, 9 F.3d 1139, 1146 (5th Cir. 1993). The ultimate
determination whether the search or seizure was reasonable under
the Fourth Amendment is reviewed de novo. United States v. Seals,
987 F.2d 1102, 1106 (5th Cir. 1993); United States v. Moser, 123
F.3d 813, 823 (5th Cir. 1997), petition for cert. filed, (U.S. Nov.
3, 1997)(97-6618).
The Fourth Amendment protects people from unreasonable
searches and seizures. United States v. Berry, 670 F.2d 583, 589-
90 (5th Cir. 1982)(en banc). The federal "knock and announce" rule
codified at 18 U.S.C. § 3109 does not apply, because the search of
Jones’ apartment was conducted by state officers. See United
States v. Heacock, 31 F.3d 249, 258 (5th Cir. 1994). Nevertheless,
“the common-law knock-and-announce principle forms a part of the
Fourth Amendment reasonableness inquiry”, which applies with equal
force to state and federal law enforcement officers alike. Wilson
v. Arkansas, 514 U.S. 927, 930-31, 115 S. Ct. 1914, 1916 (1995).
However, the Fourth Amendment’s reasonableness requirement is
“flexible” and does not ignore valid “law enforcement interests.”
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Id. at 934. The question of whether or not the officers in this
case should have knocked and announced their presence and purpose
is of no consequence, as it is conceded that they did just that.
Indeed, Jones admits that the officers knocked and announced their
presence, but he argues that they did not wait a reasonable length
of time before entering.
The notion that the common-law knock-and-announce principle is
part of the reasonableness inquiry is relatively new in Fourth
Amendment jurisprudence. Hence, no case from the Supreme Court or
this Court has yet specifically addressed how long officers must
wait before entering a residence after knocking and announcing
their presence. There are cases in other circuits dealing with the
amount of time required under the federal “knock-and-announce”
statute. Generally, a delay of five-seconds or less after knocking
and announcing has been held a violation of 18 U.S.C. § 3109.
United States v. Moore, 91 F.3d 96, 98 (10th Cir. 1996) (officers
waited 3 seconds at most and the Government failed even to allege
that the officers harbored a concern for their safety); United
States v. Lucht, 18 F.3d 541, 550-51 (8th Cir. 1994) (waiting 3 to
5 seconds before entering was not long enough); United States v.
Rodriguez, 663 F. Supp. 585, 587-88 (D.D.C. 1987) (delay of 3 to 5
seconds was insufficient); United States v. Marts, 986 F.2d 1216,
1217-18 (8th Cir. 1993) (lapse of less than 5 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.
1990) (forced entry only seconds after announcing the officers’
authority and purpose must be “carefully scrutinized”); United
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States v. Mendonsa, 989 F.2d 366, 370 (9th Cir. 1993) (waiting 3 to
5 seconds was insufficient). However, when officers have waited
more than 5 seconds, the courts have generally held that there was
no violation of § 3109. United States v. Markling, 7 F.3d 1309,
1318 (7th Cir. 1993) (officers waited 7 seconds before starting to
try to knock the door down); United States v. Spriggs, 996 F.2d
320, 322-23 (D.C. Cir. 1993) (officers waited 15 seconds before
attempting to enter); United States v. Ramos, 923 F.2d 1346,
1355-56 (9th Cir. 1991) (after two requests and 45 seconds);
United States v. Myers, 106 F.3d 936, 940 (10th Cir.) (agents
waited 10 seconds before battering the door down), cert. denied,
117 S. Ct. 2446 (1997); United States v. Knapp, 1 F.3d 1026,
1030-31 (10th Cir. 1993) (10 to 12 seconds was sufficient to wait);
United States v. Gatewood, 60 F.3d 248, 250 (6th Cir. 1995) (no
violation when officers waited about 10 seconds between
announcement and entry). However, because the timing question is
relevant in § 3109 cases only to the extent necessary to imply
refusal of admittance by the occupant, these cases are of little
value in determining how long state officers must wait before
breaking in under the Fourth Amendment reasonableness standard. It
is possible that a delay in a particular case might be too short to
imply refusal of admittance under § 3109, but would be reasonable
for Fourth Amendment purposes because of exigent circumstances such
as the potential for destruction of evidence or danger to law
enforcement officers or innocent occupants.
Therefore we must approach the Fourth Amendment timing
question in this case as one of first impression for this Court.
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We will resist the temptation to create a bright-line standard for
all cases, i.e., five seconds or less is not long enough and more
than five seconds is. We will only say that the officers in this
case waited long enough after knocking and announcing their
presence and purpose. In drug cases, where drug traffickers may so
easily and quickly destroy the evidence of their illegal enterprise
by simply flushing it down the drain, 15 to 20 seconds is certainly
long enough for officers to wait before assuming the worst and
making a forced entry. See United States v. Moore, 956 F.2d 843,
850 (8th Cir. 1992)(“It is reasonable for police officers to assume
that suspects selling illegal drugs in small quantities from a
residence that has normal plumbing facilities will attempt to
destroy those drugs....”). Given the undisputed evidence that the
officers knocked and announced their intentions before entering the
residence, and given the possibility that a longer wait might well
have resulted in the destruction of evidence, the officers’ actions
did not violate the common-law “knock-and-announce” principle.
Accordingly, the district court did not err in denying the
suppression motion.
III.
SUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION
Jones argues that the evidence at trial was insufficient to
prove that he knowingly possessed the drugs, the revolver, and the
ammunition. The crux of Jones’ argument is that there was a
logical explanation for his presence in the raided premises and
that there is evidence that others could have been the culprits.
This argument ignores the standard of appellate review; the
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Government is not required to present enough evidence to exclude
every hypothesis of innocence. United States v. Bell, 678 F.2d
547, 549 (5th Cir. 1982) (en banc).
Jones moved for a judgment of acquittal at the close of all
the evidence. Accordingly, the standard of review for sufficiency
of evidence is whether any reasonable trier of fact could have
found that the evidence established the essential elements of the
crime beyond a reasonable doubt. United States v. Alix, 86 F.3d
429, 435 (5th Cir. 1996). The jury is free to choose among all
reasonable constructions of the evidence. United States v. Chaney,
964 F.2d 437, 448 (5th Cir. 1992). “In evaluating the sufficiency
of the evidence, [the court] consider[s] the evidence in the light
most favorable to the government with all reasonable inferences and
credibility choices made in support of the verdict.” United States
v. Ivy, 973 F.2d 1184, 1188 (5th Cir. 1992).
To prove possession with the intent to distribute, the
Government must prove that Jones knowingly possessed the drugs with
the intent to distribute. United States v. Reyes, 102 F.3d 1361,
1365 n.4 (5th Cir. 1996). To prove possession of a firearm or
ammunition, the Government must prove that Jones had been convicted
of a felony and that he knowingly possessed a firearm or ammunition
in or affecting interstate commerce. 18 U.S.C. § 922(g); United
States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995), cert. denied,
116 S. Ct. 1582 (1996).
Possession may be actual or constructive and may be proved by
circumstantial evidence. Cardenas, 9 F.3d at 1158 (drugs); United
States v. Knezek, 964 F.2d 394, 400 (5th Cir. 1992) (firearms);
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United States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992)
(firearms). Constructive possession is the knowing exercise of or
the knowing power or right to exercise dominion and control over
the contraband. Cardenas, 9 F.3d at 1158 (drugs); Knezek, 964 F.2d
at 400 (firearms). One who owns or exercises dominion or control
over the premises where contraband is found may be deemed to
possess the contraband. United States v. Sanchez-Sotelo, 8 F.3d
202, 208-09 (5th Cir. 1993) (drugs); Knezek, 964 F.2d at 400
(“constructive possession may be . . . inferred from the exercise
of dominion or control over the vehicle in which the [weapon] is
found”). Ownership of the firearm is not requisite to proving
possession. United States v. Robinson, 857 F.2d 1006, 1009 (5th
Cir. 1988).
The evidence at trial was sufficient for the jury to find that
Jones knowingly possessed the drugs, revolver, and ammunition.
Sergeant Pat Powell testified that Jones told him that he was the
only person in the apartment when the officers arrived and that it
was his apartment. He appeared to be folding clothes when the
officers arrived. Detective Alton Blaise testified that when asked
about any drugs in the apartment, Jones answered, “Yes, I have some
cocaine.” Sargeant Powell asked Jones to show them where the drugs
were kept. Jones led the officers to a robe in a bedroom and said
“that’s all of it.” Officers recovered a “substantial amount of
crack cocaine” from a pocket in the robe worth up to $15,000.
Officers also found in the bedroom containing the drugs a loaded
revolver between the mattress and box springs, a personal letter
addressed to Jones at the apartment address, and a receipt from
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Southwestern Bell with his name and the apartment address.
Officers also found an O’Haus metric scale commonly used to measure
drugs, $670 cash (hidden under a cushion of the love seat), a piece
of notebook paper containing Jones’ writing that appeared to be a
record of drug transactions, and twenty rounds of “38 ammunition”.
The landlord for the apartment testified that she had a verbal
lease only with Jones, Jones had been the only person to pay the
rent, Jones usually paid the rent in cash, and Jones appeared to be
the only person living there.
Viewing all the evidence in a light most favorable to the
verdict, a rational jury could have found Jones knowingly possessed
the drugs, revolver, and ammunition. Accordingly, the judgment of
the district court must be affirmed.
AFFIRMED.
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