* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 11 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-3002

v. (D. Kansas) WILLIE RAY PEWITTE,

Defendant - Appellant. (D.C. No. 96-CR-40078)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and LUCERO , Circuit Judges.

Willie Ray Pewitte appeals his conviction by a juryon one count of possession of cocaine with intent to distribute, inviolation of 21 U.S.C. § 841(a)(1). We affirm.1 A second search warrant authorized the search of a second floor apartment.

That search warrant was not made a part of the reco rd in Mr. Pewitte’s suppression hearing. - 2 - BACKGROUND On October 9, 1996, Junction City, Kansas, narcotic s detective Patricia Giordano swore out an affidavit describing two controlled purchases of cocaine by a confidential informant from Mr. Pewitte. The purchases took place in an apartment at 128 East Seventh Street in Junction Ci ty. The affiant sought a warrant to search “128 EAST 7TH #1, THE FIRST APART MENT DOOR ON THE WEST SIDE AS YOU ENTER THE APARTMENT BUILDING, AND 128 EAST 7TH ST., APARTMENT LOCATED ON THE SECOND FLOOR , EAST SIDE OF THE BUILDING.” R. Vol. I, Tab 23 at Ex. A. A judge issued a search warrant authorizing the search of “128-1 EAST 7TH S TREET (WEST APARTMENT GROUND LEVEL).” Id . at Ex. B. 1 Officer Giordiano, along with officers Joseph Espy, Mike Life, and Robert Story, arrived at the apartment building just befor e 8:00 a.m. on October 10. Without announcing their presence or knocking on th e door, the officers forcefully opened the door leading to Mr. Pewitte’s first floor apartment. They found Mr. Pewitte asleep on the floor a few feet in side the door. An officer gave Mr. Pewitte a Miranda warning. Detective Story asked for and received M r.2 Detective Life testified that plastic baggies with missing corners indicated

that cocaine had been packaged. R. Vol. III at 25. - 3 - Pewitte’s permission to search the vacant apartment s in the building and Mr. Pewitte’s automobile. R. Vol. IV, Tab 79 at 95-96. The officers discovered in Mr. Pewitte’s apartment a set of digital scales, on which cocaine residue was subsequently found, $9 51.00 in cash, some razor blades, a bill from a cable company, and other misc ellaneous documents. While Mr. Pewitte’s apartment was searched, other officer s searched the second floor apartment rented by Wayne Boyd, in which Mr. Boyd’s girlfriend, Diane King, was asleep. In Mr. Boyd’s apartment officers disco vered a smoking device made from an antenna, on which cocaine residue was subse quently found, plastic baggies with the corners missing, 2a package of rolling papers, a bill addressed to Mr. Boyd, and a lease document listing Mr. Pewitte as the landlord and Mr. Boyd as the tenant for Mr. Boyd’s apartment. The office rs found several pieces of wire mesh used for smoking cocaine in Ms. King’s purse. She was arrested after the discovery of that drug paraphernalia. While the search of Mr. Boyd’s apartment continued, officers picked up Mr. Boyd from his place of employment and took him to the police station for questioning. Detective Story told Mr. Boyd that hi s apartment had been searched, that Ms. King had been arrested, that cocaine resid ue and drug paraphernalia had- 4 -

been found in his apartment, and that the police we re particularly interested in Mr. Pewitte. They advised Mr. Boyd that if he woul d provide information about Mr. Pewitte, the officers would recommend probationfor Ms. King. After talking to Mr. Boyd, the officers again searc hed a vacant apartment on the second floor. During this second search, of ficers discovered a black bag containing a quantity of crack cocaine. Officers u sed a small key found on Mr. Pewitte’s car key chain to open the lock on the bag . Fingerprints on the plastic bags containing the cocaine matched Mr. Pewitte’s f ingerprints. Pursuant to Mr. Pewitte’s consent, officers also se arched an 80's model Cadillac registered to Mr. Pewitte’s grandmother. No drugs were found in the car. The car was seized and forfeited to the Junct ion City Police Department. Mr. Pewitte filed a motion to suppress all evidence seized pursuant to the search warrant, which was denied. He was convictedfollowing a two-day trial. On appeal, he argues the district court erred in: ( 1) failing to suppress evidence seized as a result of a search warrant whi ch did not authorize the “noknock” entry which occurred; (2) failing to suppres s evidence seized as a result of a search warrant lacking in probable cause and part icularity; (3) failing to require the government to disclose the identity of the conf idential informant; and (4) refusing to grant a new trial based on governmental conduct allegedly constituting extrajudicial contact with jurors.- 5 - DISCUSSION We review the denial of a motion to suppress under familiar standards. “We accept the district court’s factual findings un less those findings are clearly erroneous, and we consider the totality of the circ umstances and view theevidence in a light most favorable to the government.” United States v. GamaBastidas , 142 F.3d 1233, 1237 (10th Cir. 1998). We review de novo the ultimate determination of reasonableness under the Fourth Amendment. United States v. Maden , 64 F.3d 1505, 1508 (10th Cir. 1995). We review f or an abuse of discretion the refusal to require disclosure of a c onfidential informant’s identity and the denial of a new trial because of improper contact with the jury. United States v. Leahy , 47 F.3d 396, 398 (10th Cir. 1995) (informant’s identity); United States v. Davis , 60 F.3d 1479, 1482 (10th Cir. 1995) (new trial).

A. “No-Knock” Entry The Supreme Court has held that “the common-law kno ck-and-announce principle forms a part of the Fourth Amendment reasonableness inquiry.” Wilson v. Arkansas , 514 U.S. 927, 930 (1995). A recognized exceptionto this principle permits “no-knock” entries when justified by exigent circumstances. “In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the p articular circumstances,3 Although Mr. Pewitte cites the federal “knock and announce” statute, 18

U.S.C. § 3109, we have held that “§ 3109 does not apply to state investigations by state officers.” United States v. Moland , 996 F.2d 259, 261 (10th Cir. 1993). Thus, while § 3109 does not apply of its own force to state officers executing state warrants, the Supreme Court in Wilson made clear that the common-law “knock and announce” principle underlying the feder al statute is incorporated in the Fourth Amendment’s reasonableness inquiry. Acc ordingly, we examine the propriety of the “no-knock” entry in this case unde r the Fourth Amendment. - 6 - would be dangerous or futile, or that it would inhi bit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin , 520 U.S. 385, ___, 117 S. Ct. 1416, 1421 (1997). 3 The question whether exigent circumstances justify a “no-knock” entry is a mixed question of law and fact. United States v. Dahlman , 13 F.3d 1391, 1398 (10th Cir. 1993). We review for clear error the trial court’s factual findings, but the ultimate determination of exigency we review de novo. Id. The government argues there were the following exig ent circumstances known to the police officers executing the warrant in this case: Detective Story testified that “information . . . circulated throug h the confidential informants and different sources on the street that [Mr. Pewitte] always had guns,” R. Vol. II, Tab 77 at 13; and, in 1991, during a controlled buyof narcotics from Mr. Pewitte, officers heard him say through a monitoring device that he had guns just like the police and “that he wasn’t scared about shooting th e police and that he would do that.” Id. Mr. Pewitte responds that officers have never in fact found weapons in- 7 -

his possession, and his statements in 1991 were “me re puffery.” Appellant’s Br. at 11. Thus, he argues no exigent circumstances ju stified the “no-knock” entry. We affirm the district court’s denial of Mr. Pewitt e’s motion to suppress based on the “no-knock” entry. Our review of the r ecord convinces us that the police conduct was justified. Police officers had heard Mr. Pewitte previously indicate a willingness to shoot officers and they h eard from confidential informants that he carried weapons. We and other c ourts have previously held that comparable information justifies a “no-knock” entry. See Dahlman , 13 F.3d at 1398 (among circumstances justifying “no-knock” entry was information from an informant that the defendant “intended to shoot it out with police”); see also United States v. Kennedy , 32 F.3d 876, 882-83 (4th Cir. 1994) (among circumstances justifying non-compliance with knock and announce statute was defendant’s threat to “kill[] a cop”); United States v. Spinelli , 848 F.2d 26, 29-30 (2nd Cir. 1988) (among circumstances justifying non -compliance with knock and announce statute was defendant’s “reputation for violence”); cf. United States v. Myers , 106 F.3d 936, 940 (10th Cir.) (among circumstance s justifying use of flash-bang device ten seconds after knocking on doo r was officers’ awareness that defendant had previously been involved in a firebombing incident), cert. denied , 117 S. Ct. 2446 (1997). We discern no Fourth Amendment violation in the execution of the “no-knock” entry in the particularcircumstances of this case.- 8 -

B. Sufficiency of the Affidavit Mr. Pewitte argues the affidavit provided as the ba sis for the search warrant failed to establish probable cause to believe that contraband would be found in Mr. Pewitte’s apartment. “In determining whether p robable cause exists to issue a warrant, the issuing judge must decide whether, g iven the totality of the circumstances, ‘there is a fair probability that co ntraband or evidence of a crime will be found in a particular place.’” United States v. Simpson , 152 F.3d 1241, 1246 (10th Cir. 1998) (quoting United States v. Janus Indus. , 48 F.3d 1548, 1552 (10th Cir. 1995)). A judge’s determination of prob able cause is afforded great deference, and we “will uphold it as long as the ju dge had a substantial basis for finding that probable cause existed.” Id. As Mr. Pewitte argues, the primary information in the affidavit was a description of two controlled buys of cocaine by a confidential informant from Mr. Pewitte, aka “Sugar Ray.” Mr. Pewitte argues the affidavit failed to establish probable cause because it contained no information about the credibility and reliability of the informant, nor any independent v erification of the informant’s statements, such as records from a monitoring devic e. He also argues the affidavit failed to establish probable cause to bel ieve that contraband would be found on the date the warrant was issued.- 9 -

We have observed that “[t]he issuing judge’s task i s to make a common sense decision whether the totality of the evidence supports the conclusion there is a fair probability that contraband or evidence o f a crime will be found.” Lawmaster v. Ward , 125 F.3d 1341, 1348 (10th Cir. 1997). In Lawmaster , we upheld the sufficiency of an affidavit “relating th e informant’s detailed, eyewitness account of the alleged illegal activity.” Id. Similarly, the affidavit here described in detail the informant’s eye-witness acc ount of the drug buys. An “explicit and detailed description of alleged wrong doing, along with a statement that the event was observed firsthand, entitles [th e] tip to greater weight than might otherwise be the case.” Illinois v. Gates , 462 U.S. 213, 234 (1983); see also Kaiser v. Lief , 874 F.2d 732, 734 (10th Cir. 1989) (holding affid avit sufficiently established confidential informant’s c redibility where the “informant’s knowledge of the events described in the affidavit was first-hand” and the substance the informant obtained was in fac t cocaine). Moreover, the affiant and other officers watched the informant enter and exit the building where the controlled buys occurred. That provided additi onal corroboration of the informant’s reliability. See United States v. Richardson , 86 F.3d 1537, 1545 (10th Cir. 1996) (holding that affidavit establishe d probable cause where the “informant’s tip was corroborated by a controlled n arcotics purchase and the observation of [the defendant’s] residence”).4As the government observes, Mr. Pewitte fails to de velop his argument

that the warrant lacked particularity. We therefor e consider the issue abandoned. At oral argument of this case, Mr. Pewitte’s counse l conceded abandonment. - 10 - We also reject Mr. Pewitte’s argument that the warr ant was unsupported by probable cause to believe that contraband would be found on the date the warrant was issued. The affidavit described two controlledbuys from Mr. Pewitte, one the day before the warrant was issued and the otherthree days before. On each occasion Mr. Pewitte readily provided more than a g ram of cocaine to the informant. That provided probable cause to believe that contraband would be found when the warrant was issued. We therefore hold, according the appropriate defere nce to the issuing judge’s determination, that the warrant was supported by probable cause. 4

C. Confidential Informant’s Identity Mr. Pewitte next argues the district court erred indenying his request to reveal the confidential informant’s identity. As i ndicated, we review that denial for an abuse of discretion. Leahy , 47 F.3d at 398. The decision whether to disclose a confidential inf ormant’s identity involves “balancing the public interest in protecti ng the flow of information against the individual’s right to prepare his defense.” Roviaro v. United States ,5 “D.A.R.E.” stands for Drug Abuse Resistance Educati on, a program

conducted by local police agencies in schools throu ghout the country. - 11 - 353 U.S. 53, 62 (1957). We have stated as follows concerning the necessity to make such a disclosure: A defendant may obtain the identity and whereabouts of an informer if his testimony might be relevant to the defendant ’s case and justice would be best served by disclosure. Disclosure is not required if the CI did not participate in the illegal activity or w hen information sought is cumulative. A CI’s testimony must be sho wn to be valuable to a defendant; mere speculation is not en ough. Leahy , 47 F.3d at 398 (quotations and citations omitted)

. Mr. Pewitte was not charged with any activity invol ving the controlled buys by the informant. He was charged and convicted bas ed on evidence found during the search of his apartment and the apartment where the cocaine was found in a bag to which he had the key. The confidential info rmant had no relevant information about that charge or that evidence. We therefore conclude the district court did not abuse its discretion in failing to di sclose the identity of the confidential informant.

D. Failure to Grant a New Trial As indicated, police officials confiscated Mr. Pewi tte’s Cadillac, which was subsequently forfeited by Mr. Pewitte and used by the police in their “D.A.R.E.”
program. 5 The personalized “Sugar Ray” (Mr. Pewitte’s nickn ame) tag on the- 12 -

front of the car was removed, and the police painte d flames on the car, attached “D.A.R.E.” stickers to it, and inscribed on it the following: “Seized from a local drug dealer by Junction City Police Department.” T he car was featured and promoted in the “D.A.R.E.” program and in local new spapers and at exhibitions. The car was parked near the courthouse during Mr. P ewitte’s trial, although the parties dispute whether jurors were able to see the vehicle. Mr. Pewitte filed a variety of motions relating to the vehicle, including motions for a gag order, a change of venue and to d ismiss, all of which were denied. Following his guilty verdict, Mr. Pewitte filed a motion for judgment of acquittal or for a new trial, on the ground that th e jury had been improperly influenced by exposure to the vehicle. The distric t court found that the “vehicle was parked within the visitor’s parking lot of the federal courthouse during at least one day of the trial” and that it “was also o bserved being driven in the downtown Topeka area during the lunch hour of Augus t 19, 1997 [the second day of trial].” United States v. Pewitte , 985 F. Supp. 1254, 1256 (D. Kan. 1997). As the district court noted, the issue is “whether any exposure to the extraneous information impermissibly tainted the jurors so as to warrant a new trial.” Davis , 60 F.3d at 1484. “A rebuttable presumption of pr ejudice arises whenever a jury is exposed to external information in contravention of a district court’s instructions.” Mayhue v. St. Francis Hosp. of Wichita, Inc. , 969 F.2d 919,- 13 -

922 (10th Cir. 1992). The government bears the bur den of establishing the harmlessness of any such contact with the jury. See United States v. Hornung , 848 F.2d 1040, 1044 (10th Cir. 1988). Further, we must be satisfied that the exposure was “harmless beyond a reasonable doubt.” Davis , 60 F.3d at 1485. We have stated that “the most common means of demonstr ating the harmlessness of an extraneous contact is to show the existence of ‘ overwhelming evidence of [the] defendant’s guilt.’” Id. (quoting Hornung , 848 F.2d at 1045). Instead of holding an evidentiary hearing to determ ine the disputed issue of whether jurors were, in fact, exposed to extraneous information concerning the vehicle, the court assumed “that some or all of the jurors did indeed see the D.A.R.E. vehicle.” Pewitte , 985 F. Supp. at 1256. As the district court also noted, photographs of the vehicle, post-forfeiture, with its “D.A.R.E.” regalia, were shown to the jury. The district court found any prejudice occasioned by any additional extraneous exposure to the vehicle to be harmless beyond a reasonable doubt because of the “overwhelming evidence of [Mr. Pewitte’s] culpability,” id. at 1257, which it detailed as follows: The evidence showed that the key to the bag contain ing the subject crack cocaine was on the defendant’s keyring, that the cocaine was in a room to which the defendant had access, and that digital scales that bore cocaine residue were in the defendant’s apartm ent near a large amount of cash. Additionally, a cooperating witnes s admitted he helped the defendant package and store cocaine in h is residence. The witness also testified that he obtained cocaine fro m the defendant.- 14 -

Id. at 1256-57. The court therefore denied Mr. Pewitt e’s motion for a new trial. We review that denial for an abuse of discretion. Davis , 60 F.3d at 1482. While we do not condone the government’s conduct, which, if true, is less than exemplary, we find no abuse of discretion in the di strict court’s denial of the motion for a new trial, in light of the court’s rev iew of the evidence against Mr. Pewitte, and its correct conclusion of harmlessness . We therefore affirm the denial of Mr. Pewitte’s motion for a new trial. AFFIRMED. ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge