UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4448

ROBERT LEE YOUNG, JR., a/k/a Robo,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

David C. Norton, District Judge.

(CR-97-278)

Submitted: January 27, 1998

Decided: March 10, 1998

Before MICHAEL and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Dale L. DuTremble, Charleston, South Carolina, for Appellant. J.

Rene Josey, United States Attorney, Brucie H. Hendricks, Assistant

United States Attorney, Charleston, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Robert Lee Young, Jr., pled guilty to being a felon in possession

of a firearm in violation of 18 U.S.C.A. §§ 922(g)(1) and 924(e)

(West 1994 & Supp. 1997). He was found to be an armed career

offender and was sentenced to 216 months imprisonment. His guilty

plea was conditioned on the disposition of a motion to suppress the

evidence, and he now appeals the district court's denial of that

motion. Finding no error, we affirm.

In the early months of 1996, the Tri-county Narcotics Task Force

learned from an informant that Young was selling drugs from his

home and that he was armed and dangerous. Attempts by undercover

officers to purchase drugs from Young were unsuccessful.

In September 1996, agents of the Task Force successfully purchased drugs from Young by using a confidential informant provided

by the Drug Enforcement Administration. The informant and his vehicle were searched and the informant was wired and given forty dollars

in government funds to make a drug purchase. The agents then maintained visual and audio surveillance of the informant. As planned, the

informant drove to a neighborhood store in search of a particular contact who would introduce him to Young and vouch for him so that the

informant could make the drug purchase. The informant could not

locate the contact, but found another individual, Michael Williams,

who knew Young and agreed to accompany the informant to Young's

residence.

The informant and Williams drove in the informant's vehicle to

Young's home. Visual surveillance into the home was impossible and

the audio transmission was of poor quality due to a loud television

that was on inside the home. After the alleged transaction and still

under visual surveillance, the informant and Williams left the house,

and the informant dropped Williams off at the store where he had

originally been picked up. Williams was never searched or otherwise

controlled by law enforcement officers. The informant returned to the

Task Force office where he was debriefed and searched. The informant did not have the forty dollars, but he did have nine rocks of

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crack cocaine. The informant also wrote a statement averring that he

had purchased crack cocaine from Young.

Later that same evening, law enforcement officers approached a

state magistrate seeking a search warrant for Young's residence. In

addition to the affidavit, the magistrate relied on his understanding

that the informant was related to the DEA and that the law enforcement officers were experienced and could identify crack cocaine. The

warrant was issued before midnight and executed at approximately

1:00 a.m. that morning.

When the officers arrived at Young's residence, they knocked and

announced "Sheriff's Department, Sheriff's Department." After two

to three seconds without any response, the officers forcefully entered

the residence where they found Young hiding in his bedroom closet

covered with a blanket. The officers recovered from the home a gun

from the bed in the room where Young was hiding, a pistol, drug paraphernalia, drug residue, a notebook with names and addresses, a

police scanner, ammunition, and $225 in cash. The marked forty dollars used by the informant was not found in Young's home.

Young was arrested and charged with violating 18 U.S.C.

§§ 922(g)(1) and 924(e). A federal magistrate judge found probable

cause to believe that Young committed the firearms violation and

denied Young's motion to suppress the evidence. The district court

affirmed the magistrate judge's recommendation. Young then entered

a conditional guilty plea, reserving the right to appeal the denial of the

suppression motion. He timely filed a notice of appeal from the denial

of the suppression motion.

A district court's determination of probable cause under the Fourth

Amendment is an issue of law that this Court reviews de novo. See

United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996). Young

first argues that the search warrant did not contain probable cause

because it lacked sufficient information about the reliability of the

informant. He contends that the officers presented the magistrate with

a "bare bones" affidavit, that he received no sworn, oral statement to

supplement the affidavit, and that the magistrate merely acted as a

rubber stamp in approving the affidavit and issuing the warrant.

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An affidavit supporting a warrant must set forth particular facts and

circumstances underlying the existence of probable cause, so as to

allow the magistrate to make an independent evaluation of the matter.

See Franks v. Delaware, 438 U.S. 154, 165 (1978). In reviewing a

magistrate's probable cause determination, a court must accord great

deference to the magistrate's assessment of the facts. See United

States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992) (citations omitted). The magistrate need only make a "common sense determination

of whether `there is a fair probability that contraband or evidence of

a crime will be found in a particular place.'" Id. (quoting Illinois v.

Gates, 462 U.S. 213, 238 (1983)). The probable cause standard "does

not demand showing that such a belief be correct or more likely true

than false." Id. (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)).

Finally, "[b]ecause of the fourth amendment's strong preference for

searches conducted pursuant to warrants, reviewing courts must resist

the temptation to `invalidate warrant[s] by interpreting affidavit[s] in

a hypertechnical, rather than a common sense, manner.'" United

States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990) (quoting

Illinois v. Gates, 462 U.S. 213, 236 (1983)) (other citations omitted).

Here, the probable cause affidavit stated that the informant was

working under the supervision of an area drug task force, and the officers informed the magistrate that the informant was supplied by the

Drug Enforcement Administration. Further, the warrant provided that

the informant had made a "control purchase of a white rock substance

believed to be crack cocaine" from Young at Young's home at the

behest of the officers. We find that the district court properly concluded that the affidavit was sufficient to establish probable cause,

and that the magistrate could have concluded from statements in the

affidavit that the informant was honest and reliable. See Gates, 462

U.S. at 238.

Young next argues that the warrant was invalid because it contained material omissions of fact that were knowingly and recklessly

withheld from the magistrate. Specifically, he points to the description in the affidavit of a "control purchase." Young contends that this

description is inaccurate because of the presence of the "unknown,

unsearched, uncontrolled third party," Williams, who was permitted

to be present at the alleged drug transaction. The law enforcement

officers who sought the warrant did not inform the magistrate of Wil-

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liams's participation. Young also points to the informant's criminal

history, which the officers did not relay to the magistrate, and the

magistrate's mistaken belief that the informant was somehow tied to

law enforcement or was a police officer. Finally, Young asserts that

the officers should have told the magistrate that the transaction may

in fact have occurred at the convenience store where the informant

picked up Williams, and not in Young's home.

To challenge the validity of a facially valid warrant, Young must

establish by a preponderance of the evidence that the officers engaged

in a "deliberate falsehood or [ ] reckless disregard for the truth, and

those allegations must be accompanied by an offer of proof." Franks,

438 U.S. at 171. Allegations of negligence or innocent mistake, however, are insufficient to attack the validity of the affidavit. See id. In

addition, there is a presumption of validity with respect to the affidavit supporting a search warrant. See id. The district court's finding

that the statements were not deliberately false or in reckless disregard

for the truth is reviewed under the clearly erroneous standard. See

United States v. Jones, 913 F.2d 174, 176 (4th Cir. 1990).

As the district court properly found, Young presented no evidence

establishing that the omission constituted a deliberate falsehood or

that the officers had a reckless disregard for the truth. The record does

not reflect that the officers intentionally omitted the information about

Williams's participation and the degree of control that the officers

exercised over the transaction. There is also no support in law for

Young's contention that the officers were required to describe the

informant's criminal history to the magistrate.

Next, the magistrate's belief that the informant was a police officer

or tied to law enforcement is not totally incorrect--even though the

informant was not a police officer, the DEA did supply the informant

to the local police. Furthermore, the magistrate testified that the officers were acting in good faith when they sought the search warrant,

and that if the same scenario was presented to him again, he would

still issue the warrant. Finally, Young's assertions that the officers

should have told the magistrate that the drug transaction could not be

confirmed by the audio tape, and that the drug transaction may have

occurred at the convenience store instead of Young's home, are also

meritless. Based on the information deduced from the tape recording,

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in addition to the informant's statement that the transaction occurred

in Young's home, we find that it was reasonable for the police officers to believe a drug transaction occurred, and that it occurred in

Young's home. Furthermore, if the officers believed the transaction

occurred at Young's home, there is no reason why they would tell the

magistrate that they believed it occurred at the convenience store.

Indeed, if the informant had purchased drugs from Williams at the

convenience store, he would have had no reason to go to Young's

house. Accordingly, the district court's finding that the officers did

not engage in a deliberate falsehood or reckless disregard for the truth

is not clearly erroneous.

Young's final claim is that the search was unreasonable because

the officers violated the knock and announce rule of 18 U.S.C. § 3109

(1994). Specifically, he alleges that the officers did not wait long

enough for a response before using force to enter Young's home after

announcing their presence. One element of the reasonableness inquiry

governing the lawfulness of searches under the Fourth Amendment is

that police officers must knock and announce their presence before

entering the premises to be searched. See Wilson v. Arkansas, 514

U.S. 927, 934 (1995). However, the principle is not a rigid rule and

allows for unannounced entry when there are important countervailing law enforcement interests such as the safety of the officers or prevention of the destruction of evidence. See id. at 936.

There is no law regarding how much time must elapse before law

enforcement officers may use force to enter a dwelling after announcing their presence. In this instance, there was testimony that the officers only waited a few seconds before using force to enter Young's

home. However, the officers had reason to believe that both drugs and

weapons would be found in Young's residence. Nine rocks of crack

cocaine had been purchased from Young inside his home earlier that

day. Also, seven months earlier, the police officers had received

information from an informant that advised that"a large amount of

guns [had] been observed inside [Young's] residence and that [Young

had] guns next to his side at most times during visits to the residence." Furthermore, this Circuit has found that"it is not unreasonable to recognize that weapons have become `tools of the trade' in

illegal narcotics operations." United States v. Nelson, 6 F.3d 1049,

1056 (4th Cir. 1993) (citations omitted). In this case, execution of the

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search warrant occurred late at night, drugs had been purchased from

the residence earlier that same day, and there was some indication that

Young was armed. Thus, we find that the entry was reasonable.

Accordingly, we affirm the district court's denial of Young's

motion to suppress. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED

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