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No. 96-1786

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas.

Keith Hawkins, *

*

Defendant-Appellant. *

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 Submitted: October 23, 1996

 Filed: December 24, 1996

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Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.

___________

LOKEN, Circuit Judge.

Keith Hawkins appeals his conviction and 210-month sentence

for possession with intent to distribute cocaine base. He raises

suppression, trial, and sentencing issues on appeal. We affirm. 

I.

An informant told Little Rock police that Hawkins was dealing

crack cocaine out of his home. Police employed the informant to

make a controlled drug buy and then obtained a warrant to search

Hawkins's home later that day. To execute the warrant, members of

the Little Rock Police Department's "SWAT" team entered the house

without knocking or announcing, handcuffed Hawkins, and placed him
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The HONORABLE HENRY WOODS, United States District Judge for

the Eastern District of Arkansas.

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on the floor. Narcotics Division officers, including Detective

Kyle King, then entered to conduct the warrant search.

King had prior contact with Hawkins and upon entering helped

the handcuffed Hawkins into a kitchen chair. Hawkins said, "King,

there ain't nothing in my house." King replied that police knew

there were drugs in the house and Hawkins "could make it easier on

himself" if he disclosed where they were hidden. Hawkins repeated

that there were no drugs in the house. A few minutes later,

another detective found 3.8 grams of crack cocaine in a potted

plant. With illegal drugs now discovered, Hawkins asked to speak

in private with Detective King. When they were alone, Hawkins

asked King, "What can I do to help myself? I got to help myself."

Hawkins then volunteered that he was only selling small quantities

of cocaine. He also named two of his suppliers and offered to

cooperate with the police in securing their arrest. Hawkins was

not advised of his rights under Miranda v. Arizona, 384 U.S. 436

(1966), until later that evening when he was taken to the police

department annex for further questioning and again made

incriminating statements. 

Prior to trial, the district court1 denied Hawkins's motions

to suppress his incriminating statements and the physical evidence

seized at his home. This evidence was admitted at trial. The jury

convicted Hawkins of possession with intent to distribute cocaine

base in violation of 21 U.S.C. § 841(a)(1). Although he argues on

appeal that he was convicted on insufficient evidence because many

people had access to his home, the evidence viewed in the light

most favorable to the government is clearly sufficient to convict

Hawkins of this offense. See, e.g., United States v. Nunn, 940

F.2d 1128, 1132-33 (8th Cir. 1991).
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II. 

Hawkins argues that the district court erred in refusing to

suppress his incriminating statements because Detective King's

initial suggestion that Hawkins should tell the search team where

illegal drugs were hidden in the house was a Miranda violation that

tainted all subsequent incriminating statements. We review the

district court's decision on a motion to suppress for clear error.

See United States v. Cordova, 990 F.2d 1035, 1037 (8th Cir.), cert.

denied, 510 U.S. 870 (1993); United States v. Eisenberg, 807 F.2d

1446, 1449-50 (8th Cir. 1986). 

The government concedes that Hawkins was in custody by the

time Detective King entered the house. But the issue is whether

King engaged in custodial interrogation. Hawkins initiated the

conversation by telling King there were no drugs to be found. King

responded that police knew there were drugs at the scene and that

Hawkins would make things easier by disclosing their location.

Predictably, Hawkins repeated his denial, and King said no more.

King and the other officers were there to search Hawkins's home,

not to interrogate him, and that is what they proceeded to do.

King's brief exchange with Hawkins, prompted by the latter's

exculpatory assertion, was not interrogation because this was not

a situation in which King "should have known [that his words] were

reasonably likely to elicit an incriminating response." Rhode

Island v. Innis, 446 U.S. 291, 303 (1980). 

Moreover, Hawkins made no incriminating statements until

cocaine was found and he asked to speak with Detective King in

private. "Miranda does not protect an accused from a spontaneous

admission made under circumstances not induced by the investigating

officers or during a conversation not initiated by the officers."

Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir. 1989) (quotation

omitted), cert. denied, 496 U.S. 909 (1990). Hawkins argues that

he was prompted to incriminate himself by King's earlier
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"inherently coercive interrogation." But that is a fanciful

characterization of Hawkins's initial exchange with Detective King.

When the cocaine was found, Hawkins said to Detective King, "I got

to help myself." That statement confirms the obvious -- it was the

discovery of illegal drugs in his home, not police coercion, that

induced the incriminating statements.

Finally, Hawkins argues that because his initial incriminating

statements were made to Detective King without Miranda warnings,

statements he made at the stationhouse following Miranda warnings

must be suppressed under Oregon v. Elstad, 470 U.S. 298, 318

(1985). Because there was no Miranda violation at Hawkins's home,

we need not undertake an Elstad analysis of the stationhouse

questioning. However, we see no evidence that the stationhouse

statements were involuntary.

For the foregoing reasons, the district court properly denied

Hawkins's motion to suppress his incriminating statements.

III.

Hawkins next argues that the district court erred in denying

his motion to suppress evidence seized during the warrant search of

his house because the police did not "knock and announce" before

entering. Hawkins's reliance on 18 U.S.C. § 3109 is misplaced.

The trial evidence confirms that the search was conducted entirely

by local police officers executing a state court warrant.

"Section 3109 does not apply in cases involving state officers

executing state warrants." United States v. Murphy, 69 F.3d 237,

242 (8th Cir. 1995), cert. denied, 116 S. Ct. 1032 (1996). 

Hawkins also based this motion to suppress on "constitutional"

grounds and correctly argues that common law knock-and-announce

principles are part of the Fourth Amendment reasonableness inquiry.

See Wilson v. Arkansas, 115 S. Ct. 1914 (1995). However, even
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Hawkins also argues that conspiracy is not a "controlled

substance offense" for purposes of U.S.S.G. § 4B1.2(2). However,

we are bound by this court's contrary decision in United States v.

Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995) (en banc), cert.

denied, 116 S. Ct. 939 (1996). 

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assuming that an unreasonable no-knock entry would require

suppression of evidence seized in the subsequent search -- a

question the Supreme Court expressly left open in Wilson, 115 S.

Ct. at 1919 n.4 -- the common law recognized that a no-knock entry

may be reasonable "in situations involving threats of physical

violence, prisoner escapes, and likely destruction of evidence."

Murphy, 69 F.3d at 243. Here, a member of the SWAT team testified

that Hawkins's house was considered a "high risk entry" because it

was barricaded by barred security doors and windows. Defense

counsel did not cross examine the witness or present contrary

evidence on this issue. On this record, Hawkins's constitutional

claim was properly rejected.

IV.

Hawkins next challenges his sentence as a career offender.

The primary issue is whether a prior conviction was for conspiracy

to deliver cocaine, a career offender predicate offense, or for

possession of a controlled substance. See U.S.S.G. § 4B1.2(2).

The government placed in evidence numerous documents confirming

that the conviction was for conspiracy to deliver cocaine,

including the plea transcript, a signed plea statement, the trial

judge's docket sheet, the judgment and commitment order, and the

Arkansas Department of Corrections admission summary. Hawkins

countered with the prosecutor's file jacket, which contains a

notation that Hawkins pleaded guilty to possession of cocaine. On

this record, the district court's finding that the conviction was

for a career offender predicate offense is not clearly erroneous.

See United States v. Oehlenschlager, 76 F.3d 227, 229 (8th Cir.

1996) (standard of review).2 
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V.

We have carefully considered Hawkins's remaining contentions

and conclude that each is without merit. The contention that he

deserves a criminal history downward departure under U.S.S.G.

§ 4A1.3 is not reviewable on appeal because the district court was

aware that it had authority to depart but declined to do so. In

denying a departure, the court stated, "on the basis of what I've

heard I'm not going to depart." See United States v. Bieri, 21

F.3d 811, 817-18 (8th Cir.), cert. denied, 115 S. Ct. 208 (1994).

Finally, Hawkins challenges the district court's decision to

give an "Allen" charge after the jury had deliberated for five

hours and delivered a note advising they were deadlocked on two of

the four counts. After the court gave the Allen charge, the jury

deliberated two to three more hours before returning its verdict.

Based upon the unobjectionable text of this charge and the length

of time the jury deliberated, we conclude the supplemental charge

was not unduly coercive. See United States v. Thomas, 946 F.2d 73,

76 (8th Cir. 1991); United States v. Young, 702 F.2d 133, 135-36

(8th Cir. 1983); United States v. Singletary, 562 F.2d 1058, 1060-

61 (8th Cir. 1977).

The judgment of the district court is affirmed.

A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.