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

### MAY 10 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES of AMERICA, Plaintiff - Appellee,

v. No. 98-3017 DEMETRIUS L. JENKINS, Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 97-CR-10047-01-JTM)

Steven K. Gradert, Assistant Federal Public Defende r (David J. Phillips, Federal Public Defender with him on the brief), Wichita, Ka nsas, for DefendantAppellant. Leon J. Patton, Assistant United States Attorney, K ansas City, Kansas (Jackie N. Williams, United States Attorney, and D. Blair Wats on, Assistant United States Attorney, on the brief, Wichita, Kansas), for Plain tiff-Appellee.

___________________________ Before BRORBY , McKAY , and EBEL , Circuit Judges.

McKAY , Circuit Judge.

__________________________-2-

Defendant Demetrius L. Jenkins directly appeals his convictions of possession with intent to distribute cocaine base and possession with intent to distribute marijuana in violation of 21 U.S.C. § 84 1(a)(1). Defendant claims that the district court erroneously denied his pretrial motion to suppress evidence obtained in connection with the execution of a sear ch warrant. He also argues that the evidence presented at trial was insufficie nt to support his convictions of possession with intent to distribute cocaine base and marijuana.

I. On March 14, 1997, the Wichita Police Department ex ecuted a search warrant on Codefendant Monika K. Payne’s residence, where Defendant regularly spent the night. The record indicates that, before entering the residence, officers knocked loudly on the outside screen door and annou nced that they were from the Wichita Police Department and had a search warrant. Officers waited approximately ten to fifteen seconds before forcing open the locked screen door. After opening the screen door, one or two more offi cers again announced their identity as police officers and their possession of a search warrant. Two to three seconds later the officers forced open the interiordoor with a battering ram, and, once they gained entry to the residence, they again announced their identity and authority. The total time between the officers’ in itial knock on the screen door-3-

and their application of force to the interior doorwas about fourteen to twenty seconds. After entering the residence, officers saw Ms. Payn e and took her into custody. Officers then located Defendant and Malay cia Payne, who is the fouryear-old daughter of Defendant and Ms. Payne, in th e southwest bedroom of the residence. Malaycia was lying on a small bed or mattress on the floor, and officers testified that they found a loaded nine-mi llimeter gun about two to three feet from her head. Underneath the bed in which De fendant was lying when he was found, officers located a brown case which cont ained a shotgun. In a night stand next to the bed, officers found marijuana, ap proximately $3,000 in cash which included a marked twenty-dollar bill used by a police informant to purchase cocaine base from Defendant, and two clear bags con taining crack cocaine. Officers also discovered marijuana and roach clips in a cigar box, plastic sandwich bags, marijuana in a laundry basket, and $ 203 in cash and Ms. Payne’s driver’s license in a pocket of a pair of women’s j eans. In addition, officers found a plastic bag containing cocaine base and mar ijuana cigarettes on top of a dresser, two small bags of marijuana on top of a la rge glass fish tank, and another plastic bag containing butts of marijuana cigarette s in a closet in the bedroom. In searching the remainder of the residence, office rs discovered a partiallysmoked marijuana cigarette in an ashtray in the bat hroom, a small plastic bag-4-

containing white powder residue on a window sill inthe kitchen, and another plastic bag with white residue in a kitchen cabinet . They also found a plastic bag containing crack cocaine in a hole covered with a p iece of particle board in the middle of the backyard of the residence. There is a four-foot fence surrounding the backyard of the residence, and a fraternity hou se is located directly behind the fence. Defendant was indicted on March 19, 1997, with one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On May 21, 1997, Defendant was chargedin a superseding indictment with the following offenses: possessionwith intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and two counts of possession of a firearm after being convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Defendant filed a motion to suppress, alleging thatthe search warrant was invalid and that the officers “failed to comply wit h the requirements of knocking and announcing their purpose prior to entry into th e residence by force.” R., Vol. I, Doc. 21. The district court denied the motion a fter an evidentiary hearing,1 The court determined that Defendant had standing to challenge the search

because “he had a reasonable expectation of privacy in the residence.” R., Vol. I, Doc. 74 at 2; see also id. Vol. II at 74 (explaining the basis on which the c ourt found that Defendant had standing to challenge the search). -5- finding that the warrant was validly issued. 1 The court also determined that the execution of the warrant was proper, explaining that although it had “some concerns about [ten] seconds being an adequate peri od of time to wait,” the amount of time the officers waited before breaking open the door was not unreasonable under the circumstances. Id. , Vol. II at 75. After a jury trial, Defendant was convicted of one count of possession with intent to distribute cocaine base and one count of possession with intent to distribute marijuana. He received consecutive sent ences of 210 months’ and sixty months’ incarceration, and he timely filed a notice of appeal. On appeal, Defendant argues that the district courtshould have granted his motion to suppress the evidence seized from Ms. Pay ne’s residence and used by the Government to convict him. In support of this argument, Defendant contends that the alleged Wichita Police Department policy t o wait only ten seconds after knocking and announcing before forcibly entering a residence violates the “knock and announce” statute, 18 U.S.C. § 3109, as does th e police officers’ execution of the warrant in this case. Defendant also claims th at the evidence was insufficient to support his convictions.2 The Government states in its brief that Defendant d id not raise the

argument that the execution of the search warrant v iolated 18 U.S.C. § 3109 in his motion to suppress. However, Defendant did raise this general argument in his motion to suppress by asserting that the “officers acted unlawfully in . . . the execution of the warrant, in that they failed to co mply with the requirements of knocking and announcing their purpose prior to entry into the residence by force.” R., Vol. I, Doc. 21 at 2. -6- II. We first address Defendant’s arguments regarding th e district court’s denial of his motion to suppress. “On appeal from the den ial of a motion to suppress, we review the evidence in the light most favorable to the government and we review the district court’s factual findings only f or clear error.” United States v. Lambert , 46 F.3d 1064, 1067 (10th Cir. 1995). Because the district court made no specific findings in support of its ruling that the officers waited a reasonable amount of time after knocking and announcing, “we m ust uphold the ruling ‘if there is any reasonable view of the evidence to sup port it.’” United States v.
Donnes , 947 F.2d 1430, 1432 (10th Cir. 1991) (internal qu otation marks and citation omitted). “[T]he reasonableness of a sear ch and seizure under the Fourth Amendment is a question of law which we review de n ovo.” United States v. Myers , 106 F.3d 936, 939 (10th Cir.), cert. denied , 520 U.S. 1270 (1997). Because the officers in this case were state office rs executing a state warrant, “they were not governed in their actions b y [18 U.S.C. § 3109] but rather by the federal constitution, specifically the Fourt h Amendment.” 2 United States-7-

v. McCloud , 127 F.3d 1284, 1286 n.1 (10th Cir. 1997); see als o United States v. Moland , 996 F.2d 259, 261 (10th Cir. 1993) (stating that section 3109 does not apply to state investigations by state officers), c ert. denied , 510 U.S. 1057 (1994). Although section 3109 does not govern this case, th e applicable standards under the statute and the Constitution are similar. See McCloud , 127 F.2d at 1286 n.1. Thus, we may “use § 3109 as a guide in conducting t he ‘reasonableness’ inquiry dictated by the Fourth Amendment.” United States v . Moore , 91 F.3d 96, 98 (10th Cir. 1996). The statute provides: “The offi cer may break open any outer or inner door or window of a house, or any part of a h ouse, or anything therein, to execute a search warrant, if, after notice of his a uthority and purpose, he is refused admittance or when necessary to liberate hi mself or a person aiding him in the execution of the warrant.” 18 U.S.C. § 3109

. While section 3109 requires officers to provide not ice of their authority and purpose before forced entry, the Supreme Court has held that the common-law knock-and-announce principle “is an element of the reasonableness inquiry under the Fourth Amendment.” Wilson v. Arkansas , 514 U.S. 927, 934 (1995). Although certain circumstances may justify entry wi thout knocking and announcing, see id. , “[t]he Fourth Amendment . . . includes a general presumption that police officers executing a search warrant fora residence must announce their presence and authority before entering.” Moo re , 91 F.3d at 98. “If the-8-

occupants do not admit the officers within a reason able period of time [after they have knocked and announced their presence and purpo se], the officers may be deemed to be constructively refused admittance, and they may then enter by force.” Id. This court has not established a clear-cut standardby which to determine the amount of time officers must wait after knockin g and announcing before forcibly entering a residence. Under certain circu mstances, this court has held that waiting approximately ten seconds is reasonabl e. See, e.g., Myers , 106 F.3d at 940 (upholding district court’s conclusion that agents who knocked loudly and waited ten seconds before entering complied with th e Fourth Amendment); United States v. Knapp , 1 F.3d 1026, 1031 (10th Cir. 1993) (affirming dis trict court’s determination that officers did not violate section 3109 because they waited ten to twelve seconds after knocking and ann ouncing). By contrast, this court has found three seconds to be an unreasonablyshort waiting period. See
Moore , 91 F.3d at 98 (affirming trial court’s conclusion that entering three seconds after making announcement was “virtually in stantaneous” and therefore “precluded any claim that the officers were preclud ed admittance” (internal quotation marks and citation omitted)). Although the prospect of utilizing these cases as g uideposts is appealing, a bright-line rule for determining how much time is e nough is inappropriate. See-9-

United States v. Goodson , 165 F.3d 610, 614 (8th Cir. 1999) (“‘The determin ation of whether an officer was justified in forcing entry after announcing his presence and purpose does not turn on any hard and fast time limit, but depends upon the circumstances confronting the officer serving the w arrant.’” (citation omitted)); United States v. Spikes , 158 F.3d 913, 926 (6th Cir. 1998), cert. denied , __ U.S. __, 118 S. Ct. 1854 (1999) (declining to create bri ght-line rule regarding amount of time officers must wait after knocking and annou ncing); United States v. Jones , 133 F.3d 358, 361 (5th Cir.) (same), cert. denied , __ U.S. __, 118 S. Ct. 1854 (1998); cf. Knapp , 1 F.3d at 1030 (stating that, under section 3109, “there is no concrete rule requiring the officers to wait a spec ific period of time before entry”). Instead, the amount of time that officers must wait after knocking and announcing depends on the particular facts and circ umstances of each case. See Goodson , 165 F.3d at 614; Spikes , 158 F.3d at 926 (“Whether police officers paused long enough before admitting themselves into a home thus entails ‘a highly contextual analysis, [requiring] examin[atio n of] all the circumstances of the case.’” (citation omitted)); United States v. J ackson , 585 F.2d 653, 662 (4th Cir. 1978) (“It is the rule that the time which mus t elapse after knocking and announcing . . . varies with the exigencies of each case.”); cf. Richards v. Wisconsin , 520 U.S. 385, 394 (1997) (stating that “in each c ase, it is the duty of a court confronted with the question to determine whe ther the facts and-10-

circumstances of the particular entry justified dis pensing with the knock-andannounce requirement”); Wilson , 514 U.S. at 934 (explaining that “[t]he Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores c ountervailing law enforcement interests.”); Knapp , 1 F.3d at 1030 (noting that violation of “the knock and announce requirement [of section 3109] de pends upon the particular circumstances surrounding the execution of the warr ant”). In fact, exigent circumstances such as the risk of destruction of ev idence or the threat of physical violence may justify dispensing with the knock-and- announce principle altogether. See Richards , 520 U.S. at 394. This is not to say that the mer e likelihood that drugs or weapons will be found in the searched premises alone will support the reasonableness of a given waiting period. See Moore , 91 F.3d at 98 (“The mere statement that firearms are present, standing alone, is insufficient” to show that exigent circumstances justified immedi ate entry.); cf. Spikes , 158 F.3d at 926 (stating that while the presence of dru gs is “not a conclusive factor, [it] lessens the length of time law enforcement mus t ordinarily wait outside before entering a residence”). Further, to the extent that officers attempt to justify a brief waiting period on the risk of destruction of evidence alone, we note that a few extra seconds is unlikely to prevent a suspect from flushing large quantities of evidence down the toilet or destroying it in a k itchen disposal.-11-

We now turn to Defendant’s argument that the Wichit a Police Department’s alleged ten-second policy violates the knock-and-an nounce principle. In response to this argument, the Government informs us that no such policy was introduced into evidence and argues that Defendant only “infer s that a ‘policy’ exists from the testimony of the officers” involved in the sear ch. Appellee’s Br. at 11. However, the record contains direct testimony that the Wichita Police Department trains its officers to wait ten seconds after knock ing and announcing before forcibly entering a residence. See R., Vol. II at 38, 47. This “policy” does not vary according to the size of the premises to be se arched, but instead seems to apply “across the board.” Id. at 39. Whether or not the officers’ testimony is sufficien t to prove the existence of a ten-second policy within the Wichita Police de partment, such an inflexible policy clearly would violate the knock-and-announce standard. Cf. United States v. Ward , __ F.3d __, 1999 WL 152998, at *4 (4th Cir. 1999) (stating that a purported sixty-second FBI policy “would be trouble some” under section 3109 in light of rule that amount of time officers must wai t varies with exigencies of each case). As explained above, compliance with the kno ck-and-announce component of the Fourth Amendment reasonableness inquiry mustbe evaluated on a factdependent, case-by-case basis. Without some additi onal evidence regarding, for example, the size of the house, the presence of gun s, or other exigent-12-

circumstances, officers frequently may be unable to justify a waiting period as short as ten seconds. In light of these considerat ions, a policy requiring officers to wait ten seconds in every case would not comportwith existing Supreme Court and circuit precedent. Moreover, we are particularly troubled by the recor d in this case in which officers testified that occupants whose homes are s earched by the Wichita Police Department rarely reach the door before the officer s break it open. Specifically, Officer Tracey Repp testified that in his experienc e of executing over fifty search warrants, no occupants ever had been able to reach the door to open it before officers broke it down, see R., Vol. II at 38; Officer Jeffrey T. Easter testi fied that only twice in his experience of executing overfifty search warrants had anyone reached the door in time to open it. See id. at 47, 55. Our concern is heightened because this court “seem[s] to be review ing the actions of Kansas police executing ‘knock and announce’ warrants withsome frequency.” McCloud , 127 F.3d at 1288 n.3 (citing cases involving exec utions of search warrants by Kansas police). In spite of our grave concerns, this case does not squarely present us with the issue of whether the W ichita Police Department’s alleged ten-second policy violates the knock-and-an nounce principle. Because a reasonable view of the evidence supports the distri ct court’s conclusion that the officers who executed the warrant on Ms. Payne’s re sidence complied with the3 “[T]he reference point for the reasonableness deter mination is the amount

of time between when the officers begin to announce their presence and when the officers hit the door with a battering ram or otherimplement which could destroy the door and allow them entry.” McCloud , 127 F.3d at 1288, n.2. -13- knock-and-announce rule, the circumstances of this case require us to affirm in any event. In this case, the record supports a finding that th e officers waited at least fourteen and up to twenty seconds from the time the y first knocked and announced until they applied force to the interior door of Ms. Payne’s residence. 3 The officers testified that they announced their pr esence and authority at least twice before forcibly entering the residence and th at they waited a few additional seconds between forcing open the exterior screen do or and beginning to break down the interior door. Further, we agree with the Sixth Circuit’s determination that if a warrant is executed in the middle of the day the amount of time the officers need to wait before entering is generally reduced. See Spikes , 158 F.3d at 927. Thus, the required waiting period was some what reduced because the because the officers executed the warrant at 10:00 a.m., “when most people are awake and engaged in everyday activities.” Id. Because the record shows that the officers waited for at least fourteen and as long a s twenty seconds before applying force to the interior door, we cannot say that the trial court committed clear error in upholding the search of Ms. Payne’s residence. We therefore conclude that the-14-

district court properly denied Defendant’s motion t o suppress.

III. Defendant also argues that the evidence presented at trial was insufficient to support his convictions of possession with intent to distribute cocaine base and possession with intent to distribute marijuana unde r 21 U.S.C. § 841(a)(1). “In making this argument, [Defendant is] faced with a h igh hurdle.” United States v.
Voss , 82 F.3d 1521, 1524-25 (10th Cir.), cert. denied , 519 U.S. 889 (1996). To evaluate whether the evidence is sufficient to supp ort a jury’s verdict, “this court must review the record de novo and ask only whether , taking the evidence–both direct and circumstantial, together with the reason able inferences to be drawn therefrom–in the light most favorable to the govern ment, a reasonable jury could find [Defendant] guilty beyond a reasonable doubt.” Id. (internal quotation marks and citations omitted). We determine whether the e vidence is sufficient “by ‘consider[ing] the collective inferences to be draw n from the evidence as a whole.’” United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997) (quoting United States v. Hooks , 780 F.2d 1526, 1532 (10th Cir. 1986)). To sustain a conviction of possession with intent t o distribute under 21 U.S.C. § 841(a)(1), the government must prove that a defendant: “(1) possessed a controlled substance, (2) knew he possessed a contr olled substance, and (3)-15-

intended to distribute the controlled substance.” United States v. Mains , 33 F.3d 1222, 1228 (10th Cir. 1994). For purposes of this test, possession may be either actual or constructive. See id. “Constructive possession occurs when a person ‘knowingly has ownership, dominion or control over the narcotics and the premises where the narcotics are found.’” Wilson , 107 F.3d at 778 (citation omitted). Although constructive possession may be shown by circumstantial evidence, “the government must show ‘a sufficient n exus between the defendant and the narcotics.’” Id. (citation omitted). With respect to the cocaine base charge, Defendant disputes the jury’s verdict only as to his knowing possession of the drugs; he admits that the large quantity of cocaine base seized from the residence “would be more than adequate to sustain a conviction for possession with intent to distribute.” Appellant’s Br. at 13. Because Defendant did not have actual posse ssion of the cocaine base at the time of the search, we must determine whether h e constructively possessed the drugs by virtue of his knowing ownership, dominion, or control over Ms. Payne’s residence and the drugs. Although Defendant may not have resided at Ms. Payn e’s residence on a full-time basis, the record indicates that his girl friend and daughter both lived there and that he stayed there three to four nights a week. In addition, Ms. Payne’s mother, Karon Howard, testified that Defend ant lived there. Ms. Payne’s-16-

stepfather, Willie Howard, testified that he and Ka ron Howard often visited Ms. Payne and Malaycia and that Defendant was present o n most of those occasions. Further, on the day of the search, officers discove red a single key in Defendant’s coat pocket which fit the front door lock of Ms. Payne’s residence. Officers also discovered mail addressed to Defendant at Ms. Payne ’s address. This evidence readily suggests that Defendant exercised sufficient dominion and control over Ms. Payne’s residence, and it supports an inference that Defendant constructively possessed the cocaine base. Defendant also claims that there was “no clear reas on” why the jury should have connected him to the cocaine base. Id. He explains that the drugs were found in a hole in the ground over thirty-nine feetfrom the back of Ms. Payne’s residence in an area accessible to many people, inc luding the occupants of a nearby fraternity house. However, the officer who observed the residence prior to obtaining and executing the search warrant testifie d at trial that on two occasions he saw people walking up to the house and then saw Defendant walk out the front door and towards the backyard with them. The infor mant utilized by police for a controlled buy also told officers that she had purc hased crack cocaine from an individual named Loc, which is Defendant’s nickname . Further, a marked twentydollar bill used by the informant to purchase cocai ne base from Defendant was found with approximately $3,000 in cash and some co caine base in a night stand-17-

next to the bed in which Defendant was lying when o fficers executed the warrant. Finally, although Defendant claims that residents o f the fraternity house had ready access to the hole in Ms. Payne’s backyard where th e cocaine base was hidden, they would have had to enter someone else’s private property and climb over a four-foot-high fence to reach the hole. We conclud e that the evidence establishes a sufficient nexus between Defendant and the cocain e base for a jury to conclude beyond a reasonable doubt that Defendant constructi vely possessed the cocaine base with intent to distribute it. With respect to his conviction for possession with intent to distribute marijuana, Defendant claims that the seized marijua na was “scattered throughout the interior of the residence” and, therefore, was indicative only of “use or simple possession rather than [possession] with an intent to distribute.” Id. at 12-13. To lend credence to this argument, Defendant points ou t that Ms. Payne was convicted only of simple possession even though the physical evidence used against her was the same as that used against him a nd Ms. Payne admitted that she used marijuana. The evidence directly linking Defendant to the mari juana is not as ample as the evidence linking him to the cocaine base. Neve rtheless, the jury could reasonably infer that Defendant constructively poss essed the marijuana seized from Ms. Payne’s residence with intent to distribut e it. First, the evidence which-18-

suggests that Defendant exercised dominion and control over Ms. Payne’s residence also supports an inference that he constructively possessed the marijuana. The evidence also shows a sufficient ne xus between Defendant and the marijuana for the jury to conclude that he cons tructively possessed it. For example, officers discovered marijuana throughout the room where Defendant was found, including in the night stand where they located the $3,000 in cash, the marked twenty-dollar bill, and some cocaine base. Second, the evidence supports a reasonable inference that Defendant intended to d istribute or distributed the marijuana. Officer Easter testified that he saw so me individuals approach Ms. Payne’s residence and that they left the residence shortly thereafter. He testified further that, in response to his subsequent questio ning, one of those individuals told Officer Easter that he had purchased marijuanaat the residence in question. Although the individual did not indicate from whom he had purchased the marijuana, the jury could reasonably infer from the strong evidence showing that Defendant knowingly possessed and distributed cocai ne base and that it was also he who sold the marijuana. The record also reveals that sufficient quantities of marijuana were located in the residence for the jury to infer that it was used for distribution rather than for personal use. Further , although Ms. Payne testified that some of the marijuana found in the residence w as hers, she stated that not all of it was. Finally, Ms. Payne’s testimony that the $3,000 found in the night stand-19-

was hers and that she had earned it by working and saving it over time could easily have been discredited by the jury because of the evidence indicating that the marked twenty-dollar bill was found within the $3,000 in the night stand. This evidence reasonably supports the jury’s conclu sion that Defendant knowingly possessed marijuana with intent to distribute it. In sum, we conclude that the evidence is sufficientto sustain Defendant’s convictions of possession with intent to distribute both cocaine base and marijuana.
We AFFIRM the district court’s denial of Defendant’s motion to suppress and AFFIRM Defendant’s convictions.