# United States Court of Appeals For the First Circuit

No. 02-1839 UNITED STATES OF AMERICA, Appellant,

v. ROSCOE B. SARGENT, Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge ]

Before Lynch, Circuit Judge , Coffin and Campbell, Senior Circuit Judges . F. Mark Terison , Senior Litigation Counsel, with whom Paula D. Silsby , United States Attorney, was on brief, for appellant. Brett D. Baber , with whom Baber & Weeks, P.A. was on brief, for appellee.

February 5, 2003-2- LYNCH, Circuit Judge . The question on appeal is whether the district court erred in suppressing evidence obtained in a search of an apartment, pursuant to a warrant. The suppression order was based on the brief amount of time -- five seconds -- between the police officers' knock andannouncement and the forced entryinto the apartment. Based on the circumstances showing a threat to the safety of the police officers, we hold the suppression order was in error and reverse. I. There is no material dispute as to the facts found by the trial court.

At about 7:30 p.m. on December 29, 2 000, Special Agent AndrewMiller of the Maine Drug Enforcement Agency (MDEA) sought a search warrant for Roscoe Sargent's apartment in state court, based

on information that Miller had received from a confidential informant (CI) only hours before. As his affidavit in support of the warrant stated, that very afternoon a reli able CI had made a purchase of drugs from Sarge nt at his apartment in Bangor. The controlled buy was recorded through a body microphone worn by the CI; Miller also surveilled the drug purchase from out side t he apartment. Duringthe buy, Sargent confirmed that he had a couple of pounds of marijuana and some psilocybin mushrooms for sale. Because of recent MDEA drug busts in the area, Sargent said that he wantedto "dump" (i.e. sell quickly) everythinghe had and get out1 Miller testified that the reason he did not seek a noknock warrant was the need for speed: he applied for a daytime warrant around 7:30 p.m., he had to go to the police department and get the Tactical Team r eady to execute the warrant before 9:00 p.m., and he h ad on e other warrant to execute that evening.

2 One might inquire why Miller did not request a nighttime w ar rant for the search of Sargent's apartment. Under Maine law, it is more dif ficult t o obtain a nighttime warrant. Further, there is an increased danger to police officers that accompanies nighttime raids. Whatever the reason, he did not request a nighttime warrant, and s o Main e law forbade its execution after 9:00 p.m. -3- of the business until things cooled down. Sargent asked the CI to help him sell the drugs quickly. The CI sai d that Sargent retrieved the drugs from a large safe, four feet by three feet by three feet, which looked as though it was full of drugs.

Agent Miller did not request a no -knock warrant. 1 The warrant was issued at 7:35 p. m. and, because it was a "daytime" warrant, had to be executed by 9:00 p.m. 2

Miller asked the Bangor Police Department's Tactical Team to help him execute the warrant because he had safety concerns, and he briefed the team on those concerns. He had reason to believe that a large number of knive s was dispersed throughout Sargent's small, two-room apartment, and that there also might be firearms. This information was not in the warrant, and we infer it came from the CI. Miller later testified at the suppression hearing, "The intelligence that I had received was that anywhere that Mr. Sargent was in the apartment that he could put his hand on a knife."-4- That same evening, December 29, 2000 , Miller and ten police officers from the Tactical Team executed the search warrant. The role of the Tactical Team, according to Bangor Police Officer GregorySproul, a member of the team, wa s "to make the entry, secure the premises and the people within the residence, and then turn it over to MDEA," which would search for illegal narcotics pursuant to the search warrant. At about 8:30 p.m., the group of ten police officer s arri ved at Sargent's apartment building, entered it, and proceeded down a hallway toward his unit.

Sproul testi fied at the hearing that upon reaching Sargent's apartment door, both he and another officer, John Heitmann, announced their presence by yelling words to the effect of "B angor poli ce, search warrant, open the door." At the same time, they knockedon the apartment door. The police officers then waitedapproxima telyfive seconds. Sproul testified that he thought that five seconds was an appropriate amount of time to wait because he had "safety concerns," and because he had not heard anyone inside respond or make any motion to comply with their request to open the door. Af ter the fi ve second delay, Officer Sproul gestured to the "breaching man," Officer Al Hayden, who then smashedopen the apartment door with a single stroke of a battering

ram. The apartment was too small for all of the officers to enter. Some of the officers entered the apartment and found-5-

Sargent near the doorway; indeed, any place in the apartment was close to the door of the unit. A search of the apartment revealed,

as expected, a cache of marijuana and psilocybin mushrooms. Of fice rs also discovered, as expected, multiple knives and a firearm, a shotgun. There were knives throughout the apartment, in

a variety of locations, including one stuck in the arm of the chair where Sargent had been sitting when the offi cer s approached his door. Sargent and his girlfriend, Heather Fliegelman, both testified that they had been sitting inside the small apartment's front room when they heard, in Sa rgent's words, "a lot of racket out in the hallway." Sargent rose out of his chair to investigate the noise. As he approached the apartment door, Sargent heard the police officers announcingtheir presence. Sargent testified that "I hollered that I was opening the door, and I got the door unlocked, but I didn't hav e a chance to even turn the doorknob because they smashed the door in without giving me a chance." Officer Sproul testified that he did not hear any declaration from Sargent that he was in the process of opening the door. II. At the trial level, the courts addressing this issue were of different minds. The magistrate judge hea rd testimony on the defendant's suppression motion from Mill er, Sproul, Sargent, and F liegelman. In a thoughtful opinion, the magistrate j udg e-6-

recommendeddenial of the motion to suppress, finding the officers' safetyfears both genuine and legitimate and the speed of their actions reasonable in context. The magistrate judge analyzed the

case as a de facto "no-knock" case. United States v. Sargent , No. 01-14-B-S, 2001 U.S. Dis t. LE XIS 5977, at *5-*7 (D. Me. Apr. 30, 2001). The district judge agree d with the magistrate judge's recommendation and denied the motion on May 31, 2001.

In a subsequent opinion issued on July 12, 2001, the district judge, sua sponte, granted the motion to suppress, concludingthat he was compelled to do so bythe opinion of a panel of this court in United States v. Brown , 251 F.3d 286 (1st Cir. 2001). United States v. Sargent , 150 F. Supp. 2d 157 (D. Me. 2001). The panel opinion in Brown , though, was not the last word; rather, it was withdrawn, as is customary, when this court granted

en banc review. United States v. Brown , 263 F.3d 1 (1st Cir. 2001). The en ba nc hearing in Brown ended in a tie vote, which reinstatedthe district court's denial of suppression in that case. United States v. Brown , 276 F.3d 14 (1st Cir. 2002).

Meanwhile, the government had ap pe aled the grant of Sargent's motion to suppress. When the en banc result was reached in Brown , the government asked us to vacate the suppression order and remand this case to the district court to reconsider. We did

so. Unite d States v. Sargent , No. 01-2072 (1st Cir. Apr. 18, 2002). On remand, the district court reached a prompt decision and-7-

maintainedits second position granting the motion to suppress. United States v. Sargent , No. 01-CR-14-B-S (D. Me. May 28, 2002). It held this search was, de fac to, a no-knock entry and that exigent circumstances did not justify the search. Id. , slip op. at 4. III.

This court reviews de novo the ultimate conclusion as to whether a search was reasonable within the meaning of the Fourth Amendment. Ornelas v. United States , 517 U.S. 690, 700 (1996). Subsidiary factfinding by the district court is subject to review onlyfor clear error. United States v. Meade , 110 F.3d 190, 193 (1st Cir. 1997). It is evident that the factual findings here are not clearly erroneous. There is no real dispute about the facts. The only dispute is whether the facts lead to the conclusion that the search was unreasonable.

Police acting under a warrant usually are required to

announce their presence and purpose, including by knocking, before attemptingforcible entry, unless circumstances exist which render such an announcement unreasonable. See Wilson v. Arkansas , 514 U.S. 927, 936 (1995). Wilson inco rporat ed the common-law "knock andannounce" rul e into the Fourth Amendment reasonableness inquiry. Id. at 929. In Richards v. Wisconsin , 520 U.S. 385 (1997), a unanimous court held uncon stit utional a blanket rule3 These interests have long been protected. But before [the sheriff] breaks [the door], he ought to signify the cause o f his coming, and to make request to open doors . . . , for the law without a default i n the owner abhors the destruction or b re aking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he di d not know of the process, of which, if he had notice, it is to be presumed that he would obey it . . . . Semayne's Case , 77 Eng. Rep. 194, 195-96 (K.B. 1603) ( quoted in Wilson , 514 U.S. at 931-32). -8- which avoided the case-by-case reasonableness inquiry andsuspended the knock and announce rule for felony drug cases. Id. at 392-94.

The common law knock andannounce requirement recognizes th e deep privacy and personal integrity interests people have in their homes. 3 It also serves to protect the safety of police officers by preventingthe occupant from takingdefensive measures against a perceived unlawful intruder. See W.R. LaFave, Search and Seizure § 4.8(a), at 599 (3d ed. 1996). The common law recognized, however, that the presumption in favor of announcement "would yield under circumstances presenting a threat of p hysic al violence." Wilson , 514 U.S. at 936.

Avery precise Fourth Amendment question is presented in this case. There is no question about whether probable cause existedor whether the warrant was properly executed. There is no question about delay in exercising the warrant, abou t whet her it

was executedlate at night, or about whether the warrant was valid.-9-

There is no question about whether the police knocked or whether their announcement was improper; the announcements were adequate to alert the inhabitants inside. The only question is whether the choice of the police officers to gain forcible entry after hearing no response within five seconds was unreasonable under the Fourth Amendment. There have certainlybeen cases in which such short waits

were held unreasonable. See, e.g. , United States v. Granville , 222 F.3d1214, 1218 (9th Cir. 2000) ("Under t he facts of this case, five seconds can not be considered 'a significant amount of time.'"); United States v. Lucht , 18 F.3d 541, 550-51 (8th Cir. 1994) (three to five seconds unreasonable); United States v. Marts , 986 F.2d 1216, 1217, 1220 (8th Cir. 1993) (less than five seconds unreasonable); West v. United States , 710 A.2d 866, 869 (D.C. 1998) (five seconds unreasonable); Commonwealthv. Means , 614 A.2d 220, 222-23 (Pa. 1992) (five to ten seconds unreasonabl e). These rulings are highly contextual, turning on factors that indicate whether the amount of time given was enough for the de fenda nt to ascertain wh o was at the door and to respond, see Granville , 222 F.3dat 1218, and whether officers' safety was at risk, see Lucht , 18 F.3d at 551.

The general rule requiringannouncement is itself simply part of the broader Fourth Amendment reasonablen ess in quiry. Wilson , 514 U.S. at 929. Wilson and Richards , which concern police-10-

entries made without any announcement, are thus highly pertinent to the analysis here. The same interests identified in those cases

are at issue in this one. " [T] he common law recognized that in divi duals should have an opportunity to themselves comply with the law and to avoid the dest ruction to property occasioned by a forcible entry. These interests are not inconsequential." Richards , 520 U.S. at 393 n.5 (citing Wilson , 514 U.S. at 930-32). Sargent's argument is that he was denied just such a reasonable opportunityto c ompl y with the law and open the door to permit entry. In order to justify entry without knocking on the basis of concern for officers' safety, the police must "have a reasonable suspicio n th at knocking and announcing their presence, under the particular circumstances, wouldbe dangerous." Richards , 520 U.S. at 394. The Supreme Court in Richards imported the "reasonable suspicion" test from Terryv. Ohio , 392 U.S. 1 (1968), which requires that an officer "be able to point to specific and articulable facts," id. at 21, and have "at least a minimal level of objective justification," Illinois v. Wardlow , 528 U.S. 119, 123 (2000). When circumstances lead officers to wait a shorter period of time between the knock and announcement and the forced entry, the no-knock"reasonable suspicion" analy sis is appropriate as well. The officers, at the time of entry, must have artic ulabl e4 Even absent these t ypes of circumstances, there is a

limit to how long police must reasonably wait. Entrance must be refused, see 18 U.S.C. § 3109 (2000); Wilson , 514 U.S. at 932, but silence may be construed as refusal, Granville , 222 F.3d at 1218. -11- facts concerning, for example, danger to themselves or destruction

o f evidence, which lead them to believe they can wait no longer. 4 This analysis applies the same reasonable suspicion standard to a short pause between announcement and entry as to a true unannounced entry; the government agrees that this standard is the appropriate

one. But there is a practical difference. In the case of a brief but real pause, the officers know one additional fact: that their announcement has not been answered. Combined with other factors, that can be enough to engender reasonable suspicion and permit forced entry.

The magistrate anddis trict court judges analyzed this

case as a de facto no-knock case. In determ ining whether the poli ce c ould enter unannounced, the judges considered only the evidence the police had at the time they approached Sargent's door. However, the pre sen ce of a reasonable suspicion of danger is properlyanalyzed at the time of entry . At that m ome nt, the officers knew what they knew earlier -- that there were numerous readilyavailable weapons and drugs in a very small apartment -- but they also knew for the first time that they heardno answer to their knocks and yells. The five second delay, combined with the-12-

factor s we describe below, amounted to a reasonable suspicion of danger. Despite the brevity of the period betw een announcement andentry there was, on these fa cts, no vi olation of the Fourth Amendment reasonableness standard. There are two key issues: whether it was reasonable for the police to expect a response within five seconds after the announcements, an d whether it was reasonable for the police to fe ar a threat to their safety given the circumstances. The government agrees that both of these issues must be answered affirmatively for this search to be reasonable.

We conclude that i t wa s objectively reasonable for the officers executing the warrant to think that: 1. Sargent was at his apartment, given that he was dealing drugs that afternoon from the apartment; 2. Sargent was awake and dressed at the time, between 8:30 and 9 p.m.; 3. Sargent had heard the two officers when they knocked, and each announced, given the small size of the apartment and the fact that the police were yelling; 4. Sargent may well have been alerted earlier when there was noise

as eleven officers and a battering ram entered the small hallway outside his apartment (as he was in fact alerted);5 The government has not attempted to justify the short

period on the ground that it was needed to prevent the destruction of evidence. -13- 5. Sargent thus had time to respond either verbally or by opening the door in the five seconds after the announcements andbefore the battering ram broke down the door, but he had not done either; 6. The police were at real risk because of the presence of knives, andp ossibly a gun, in the apartment, within easy reach f or us e anywhere in the apartment; 7. The very presence and location of so many knives was bizarre and Sargent's response to police entry could also be bizarre; 8. The knives and possible gun in the apartment were meant for use

as weapons, given the sign ifi cant quantities of drugs in the apartment and the apartment's use to stash drugs; 9. Sargent might try to avoid arrest, as he was a ware of recent MDEA drug busts and told the CI he wanted to get away; 10. The risk to the officers increa sed with each second that Sargent did not respond after he had an opportunity to do so.

Objectively, the officers had reasonable suspicion that their safety would be threatened by further delay. The presence of all of these factors convinces us the search was constitutionally reasonab le, de spite the five second interval, in light of the threat to the safety of the officers. 5

Absent that threat, the constitutional calculus in this

case might be qui te different. One purpose of the knock and-14-

announce requirement is to permit occupants a reasonable periodof time to permit the police to enter. We share the district court's

as sessment that serious Fourth Amendment concerns are validly raisedwhen the response time between announcement and entry is so truncated. There are no bright line rules about the amount of time officers must wait after they announce. Any "five second" or "ten second" categorica l ru le would be impermissible for the same

reasons the categorical rule in Richards was imp ermiss ible. The rejection of per se rules works both ways. Just as no defendant shouldtake comfort that a five second wait is per se unreasonable,

no police department should take comfort that a ten or twenty secondwait is reasonable or generally acceptable. The reasonableness inquiry requires that each case be analyzed on its

own facts. United States v. Spikes , 158 F.3d 913, 926 (6th Cir. 1998) ("The Fourth Amendme nt's 'knock and announce' principle, given its fact-sensitive nature, cannot be distilled into a constitutional stop- watc h where a fraction of a second assumes controlling significance.").

This court's precedents support the reasonableness, in context, of this search. This court has upheld an entry at a side door five to ten seconds after officers knocked and where other off ice rs at the front door had previously started knocking, and where there were justifiable fears that the occupants would flush-15-

drugs down the toilet. United States v. One Parcel of Real Prop., Etc. , 873 F.2d 7, 9 (1st Cir . 1989). The court held it was reasonable for the officers to conclude an additional wait would be fruitless. Id . at 9-10. In United States v. Garcia , 983 F.2d 1160 (1st Cir. 1993), this court uphe ld as reasonable a wait of ten seconds after knock ing when the contraband could be disposed of easily. Id. at 1168; see United States v. DeLutis , 722 F.2d 902, 908-09 (1st Cir. 1983) (twenty second wait not unreasonable); see also United States v. Lipford , 203 F.3d 259, 270 (4th Cir. 2000) (five second wait reasonable where occupant had opened t he door

more quickly just before andwhere there was a risk of destruction of evidence); United States v. Markling , 7 F.3d 1309, 1318 (7th Cir. 199 3) (se ven second wait sufficient before entry into small motel room).

We emphasize that there is no requirement that officers servinga search warrant have evidence of the defendant's prior use of violence or even of his particularized propensity for violence in order for exigent circumstances to exist. Such evidence will, of course, make it easier to establish a reasonable suspicion of a threat. But the absence of such evidence does not establish there is no reasonable suspicion of a threat. Nonetheless, the district court discounted the threat to the officers here, saying:

[T]he ev iden ce the police possessed at the time they enteredDefendant's residence was insufficient to support a reasonable suspicion of danger. The off icer s were aw are only that Defendant possessed a number of kni ve s-16- that were easily accessible, and that Defendant distributeddrugs from his residence. Those two facts do not support a reasonable inference that th e po lice, by knockingand announcing their presence, would place themselves in harm's way. Many people own all manner of knives for general purposes, and in a small apartment such as Defendant's it would not be unusual for the occupant to be able to reach a knife quickly. Although it is true that the police suspected that Defendant d ist ributeddrugs from his residence, there is no evidence on the record tending to draw a connection between Defendant's ownership of knives a nd th e drug sales. These conclusions are error for a variety of reasons. It is not common for people to keep so many knives in so many places in the ir homes that a knife is always within easy reach. To the contrary, such beh avi or is bizarre. These knives were weapons. The fact that the police knew the knives we re there m ost likely meant that the CI had seen them openly displayed throughout the apartment. Since Sargent was an active drug dealer with a substantial stock of drugs and weapons at hand, there was adequate reason to think the knives were intended to convey a message that Sargent would protect himself and his drugs. The message sent by the presence of the knives was reinforced by the suspected presence of a gun, later verified.

The knives and the possible firearm posed a real danger to the po lice on a ny objective analysis. If Sargent chose to fight, the police were at riskof injury or death. They had reason to fear a knife fight in close quart ers, with Sargent having the advantage: he knew both the layout of the place and the location-17-

of the knives; the o fficers di d not. Even though their numbers gave them an advantage, this did not foreclose the real possibility of serious injury to one or more officers.

Finally, the fact that there was no response fromSargent

-- either verbal or physical by open ing the door -- for five seconds after the announcement by two officers has significance. It was entirely reasonable for the officers to become increasingly

nervous. The small size of the a partment meant that the five seconds after knocking with no response was even more ominous. The officers' fears were genuine, and there was a genuine basis for them. By adopting its view that this was de facto a no-knock case andshould be analyzed as such, the district court was led to overlookthis last important factor -- the lack of response from Sargent. The allowance of the motion to suppress is reversed , the motion should be denied and the case is remanded for further proceedings.