Th e HONORABLE JIMM LARRY HENDREN, Chief Judge of the Unite d 1 States District Court for the Western District of Arkansas.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3741

___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Vickie Gail Appelquist, * * Defendant - Appellant. *

___________ Submitted: February 10, 1998 Filed: June 1, 1998

___________ Before McMILLIAN, WOLLMAN, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.
Vi ckie Gail Appelquist appeals her conviction for possession with intent t o distribute marijuana seized during a warrant search of her home in Hot Springs , Arkansas. She contends the district court should have granted her motion to suppress 1 because local police violated state law restrictions on nighttime searches, failed t o announce their purpose before enter ing her home, and improperly allowed local media into her home to photograph the results of the search. We affirm.-2-

A c onfidential informant cooperating with state and local police made a controlled purchase of marijuana from Appelquist at her home at 7:30 p.m. o n November

19, 1996. The police immediately obtained a warrant to search her home fr om a municipal court judge. At 8:30 p.m., two Garland County Sheriff’s deputie s knoc ked on the door of Appelquist’s home. There was no answer. Lieutenant Steed knocked again and called out, “Police Officer. I need somebody to come to the door.” There was st ill no response. Corporal Sanders knocked a third time and shouted , “Sheriff’s D epartment, need somebody to come to the door.” Again, there was n o response. Sande rs then kicked the door in, entered a hallway, and called out, “Police officer; se arch warrant; need somebody to come out here.” Confronted by a dog , Sanders called out three more times, “Police officer. Search warrant. Somebody get this dog.” Appelquist and Mark Drake finally emerged from a bedroom.

The s ubsequent search uncovered 33.28 kilograms of marijuana, two firearms,
a page r, a police scanner, documents suggesting marijuana trafficking, and dru g paraphernalia. After admitting she had been distributing marijuana for approximately
one year, Appelquist pleaded guilty to the distribution offense, reserving her right t o appeal suppression issues.

1. Appelquist first argues that the evidence seized at her home must b e su ppressed because the police violated Arkansas Rule of Criminal Procedure 13.2(c ) whe n they executed after 8:00 p.m. a warrant that did not contain the finding it “ca n only be s afely or successfully executed at nighttime.” Appelquist acknowledges th e ge neral rule that federal courts do not suppress evidence seized by state officers i n conformi ty with the Fourth Amendment because of state law violations. See Unite d States v. Bieri , 21 F.3d 811, 816 (8th Ci r.), cert. denied , 513 U.S. 878 (1994). But she argues this principle should not apply because she was initially charged in state court, and her motion to suppress was pending in that court when this federal prosecutio n comme nced. We disagree. That a suppression motion was previously filed in stat e court is irrelevant to the inquiry under federal law; indeed, the general rule applies even-3-

when a motion to suppress was granted in an earlier state prosecution. See Unite d States v. Friend , 50 F.3d 548, 550-51 (8th Cir. 1995), vacated on other grounds , 51 7 U.S. 1152 (1996). Here, no federal interest is compromised by denying the motion to suppress because the nighttime search was clearly valid under federal law. See 2 1 U.S.C. § 879 (drug trafficking searc h warrant “may be served at any time of the day or night”); Fed. R. Cr. P. 41(h) (defining daytime “to mean the hours from 6:00 a.m. t o 10:00 p.m.”). Moreover, it is not clear the st ate court would have granted Appelquist’s motionto suppress. The warrant was not issued until 8:00 p.m., the warrant affidavit requested authority to search at night, and the wa rrant expressly granted such authority. In these circumstances, the state court might well have found omission of the required preliminary findin g to be a technical or insubstantial defect, in which case suppression would have been denied under Ark. R. Cr. P. 16.2(e). 2. Appelquist next argues the evidence must be suppressed because the officers failed to announce their purpos e before forcibly entering her home. Sanders and Steed knocked three times, and twice loudl y identified themselves as police officers, but they did not state that they were there to execute a search warrant until after they entere d Appelqu ist’s hallway. She relies upon 18 U.S.C. § 3109, which requires a federa l officerto give “notice of his authority and purpose ” before breaking in to execute a war rant. But § 3109 does not apply to state officers executing state warrants. Se e U n ited States v. Hawkins , 102 F.3d 973, 976 (8th Cir. 1996), cert. denied , 117 S. Ct. 1456 (1997); United States v. Moore , 956 F.2d 843, 846-47 (8th Cir. 1992).

Knock and announce principles are part of the Fourth Amendment requirement that searches and seizures be reasonable. See Wilson v. Arkansas , 115 S. Ct. 1914 , 1918 (1995). Safety and privacy interests are better served if police e xecuting a warrant announce their purpose as well as their identity before forcibly entering. Indeed, many States have enacted statutes to that effect. See Miller v. United States ,Ark ansas lacks such a statute. The Arkansas courts examine knock an d 2 announce issues from a general reasonabl eness perspective. See Dodson v. State , 626 S.W.2d 624, 626-29 (Ark. Ct. App.), cert. denied , 457 U.S. 1136 (1982). -4- 357 U.S. 301, 308 n.8 (1958) (collecting cites). But announcement is but on e 2 “element of the rea sonableness inquiry under the Fourth Amendment,” Wilson , 115 S. Ct. at 1918, and at least three circuits have concluded in similar situations that police did not vi olate even the more rigorous standards of § 3109 when they knocked , identified themsel ves, but failed to state their purpose before forcibly entering. As the Sixth Circuit stated in United States v. Finch , 998 F.2d 349, 354 (6th Cir. 1993):
[T]h e identification of themselves as police and giving the occupants a reason able time to respond are far more constitutionally significant tha n sta ting their purpose in demanding entry, and in the absence of specia l circum stances, such as an inquiry from within, the failure to state th e purpose does not require suppression of evidence which is seized.

Acco rd United States v. Leichtnam , 948 F.2d 370, 372-74 (7th Cir. 1991); Unite d Stat es v. One Parcel of Real Property , 873 F.2d 7, 9-10 (1st Cir.), cert. denied su b
nom. , Latraverse v. United States , 493 U.S. 891 (1989). We agree with thosedecisions. Viewing t he totality of the circumstances in this case, we conclude that the officers ’ failu re to announce their purpose until they were in Appelquist’s hallway does no t render the subsequent search and seizure constitutionally unreasonable.

3. Fifteen or twenty minutes into the search, police called the local prosecutor, who in turn alerted Walter King, a photographer and bureau chief for a local television station. King went to Appelquist’s home and videotaped her being taken fro m the house and put into a police car. After the search, the police brought King and a photographer from a Hot Springs newspaper into the house to videotape the seized drugs. Appelquist argues the media presence violated Ark. R. Crim. P. 13. 3(a), 18 U.S.C. § 3105, and her Fourth Amendment rights. Only the Fourth Amendment-5-

governs the suppression of evidence seized by state and local officials. Although we do not encourage or condone such conduct, it is undisputed that the police invited the two pri vate photographers into Appelquist’s home only after the police completed the warrant search. We therefore agree with the district court t hat this police conduct is not
abasis for suppressing evidence seized in a valid and completed search. Cf. Unite d States v. Hornbeck , 118 F.3d 615, 617 n.4 (8th Cir. 1997). The judgment of the district court is affirmed.
A true copy.

Attest:

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