1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 97-40235

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

VERSUS

REGINALD WAYNE JONES,

Defendant-Appellant

Appeal from the United States District Court

For the Eastern District of Texas

January 20, 1998

Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:

I.

FACTS & PROCEDURAL HISTORY

Reginald Wayne Jones was charged in a three-count indictment

wi th possession of crack cocaine with intent to distribute,

possession of a firearm by a convicted felon, and possession of

ammunition by a convicted felon. Jones filed a motion to suppress

the evidence seized during the execution of a search warrant. At

the suppression hearing, Detective Alton James Baise testified that

he knocked on the door of Jones’ apartment and shouted “Police.2

Search Warrant.” The officers got no response, and after waiting

approximately 15 to 20 seconds, the officers entered the apartment.

Detective Baise explained that, pursuant to office policy, officers

wait no more than 20 seconds or so when executing a search warrant

for cocaine to protect against the destruction of evidence. Jones

did not dispute Detective Baise’s testimony but argued that 15 to

20 seconds was not a reasonable period to expect an occupant to

respond to an officer’s potentially unexpected announcement.

The district court denied Jones’ motion to suppress. The

court found that the officers had complied with the “knock and

announce” rule. The court noted that the evidence was undisputed

that the officers knocked on the door, announced “Police. Search

Warrant,” waited 15 to 20 seconds, and then walked into the

apartment. The court determined that 15 to 20 seconds was not an

unreasonable period, given the possibility that any drugs in the

apartment might be destroyed if the officers waited longer.

Thereafter, a jur y convicted Jones of possession of crack

cocaine with intent to distribute, possession of a firearm by a

convicted felon, and possession of ammunition by a convicted felon.

Jones timely appealed to this Court challenging the denial of his

motion to suppress and the sufficiency of the evidence to support

his conviction.

II.

MOTION TO SUPPRESS

Jones argues that the “kn ock and announce” rule applies to

state officers and that these officers did not comply with the

“knock and announce” rule because they waited only 15 to 203

seconds before entering the residence after knocking and announcing

their presence. Jones contends that there were no exigent

circumstances to justify their entry before he responded.

When the dist rict court makes factual findings following a

pretrial hearing on a motion to suppress, this court reviews such

findings for clear error, viewing the evidence in the light most

favorable to the party that prevailed in th e district court.

United States v. Inocencio

, 40 F.3d 716, 721 (5th Cir. 1994).

Conclusions of law are reviewed de novo

. United States v.

Cardenas

, 9 F.3d 1139, 1146 (5th Cir. 1993). The ultimate

determination whether the search or seizure was reasonable under

the Fourth Amendment is reviewed de novo

. U nited States v. Seals

,

987 F.2d 1102, 1106 (5th Cir. 1993); United States v. M oser , 123

F.3d 813, 823 (5th Cir. 1997), petition for cert. filed

, (U.S. Nov.

3, 1997)(97-6618).

The Fourth Amendment protects people from unreasonable

searches and seizures. U nited States v. Berry

, 670 F.2d 583, 589-

90 (5th Cir. 1982)(en banc). The federal "knock and announce" rule

codified at 18 U.S.C. § 3109 does not apply, because the search of

Jones’ apartment was conducted by state off icers. See United

States v. Heacock

, 31 F.3d 249, 258 (5th Cir. 1994). Nevertheless,

“the common-law knock-and-announce principle forms a part of the

Fourth Amendment reasonableness inquiry”, which applies with equal

force to state and federal law enforcement officers alike. W ilson

v. Arkansas

, 514 U.S. 927, 930-31, 115 S. Ct. 1914, 1916 (1995).

However, the Fourth Amendment’s reasonableness requirement is

“flexible” and does not ignore valid “law enforcement interests.”4

Id

. at 934. The question of whether or not the officers in this

case should have knocked and announced their presence and purpose

is of no conseq uence, as it is conceded that they did just that.

Indeed, Jones admits that the officers knocked and announced their

presence, but he argues that they did not wait a reasonable length

of time before entering.

The notion that the common-law knock-and-announce principle is

part of the reasonableness inquiry is relatively new in Fourth

Amendment jurisprudence. Hence, no case from the Supreme Court or

this Court has yet specifically addressed how long officers must

wait before entering a residence after knocking and announcing

their presence. There are cases in other circuits dealing with the

amount of time required under the federal “knoc k-and-announce”

statute. Generally, a delay of five-seconds or less after knocking

and announcing has been held a violation of 18 U.S.C. § 3109.

United States v. Moore , 91 F.3d 96, 98 (10th Cir. 1996) (officers

waited 3 seconds at most and the Government failed even to allege

that the officers harbored a concern for their safety); United

States v. Lucht

, 18 F.3d 541, 550-51 (8th Cir. 1994) (waiting 3 to

5 seconds before entering was not long enough); United States v.

Rodriguez

, 663 F. Supp. 585, 587-88 (D.D.C. 1987) (delay of 3 to 5

seconds was insufficient); United States v. Marts , 986 F.2d 1216,

1217-18 (8th Cir. 1993) (lapse of less than 5 seconds h eld not

sufficient to infer refusal of admittance necessary to comply with

§ 3109); United States v. Nabors , 901 F.2d 1351, 1355 (6th Cir.

1 990) (forced entry only seconds after announcing the offic ers’

authority and purpose must be “carefully scrutinized”); United5

States v. Mendonsa

, 989 F.2d 366, 370 (9th Cir. 1993) (waiting 3 to

5 seconds was insufficient). However, when officers have waited

more than 5 seconds, the courts have generally held that there was

no violation of § 3109. U nited States v. Markling

, 7 F.3d 1309,

1318 (7th Cir. 1993) (officers waited 7 seconds before starting to

try to knock the door down); U nited States v. Spriggs

, 996 F.2d

320, 322-23 (D.C. Cir. 1993) (officers waited 15 seconds before

attempting to enter); U nited States v. Ramos , 923 F.2d 1346,

135 5-56 (9th Cir. 1991) (after two requests and 45 seconds);

United States v. Myers

, 106 F.3d 936, 940 (10th Cir.) (agents

waited 10 seconds before battering the door dow n), c ert. denied

,

117 S. Ct. 2446 (1997); U nited States v. Knapp

, 1 F.3d 1026,

1030-31 (10th Cir. 1993) (10 to 12 seconds was sufficient to wait);

United States v. Gatewood

, 60 F.3d 248, 250 (6th Cir. 19 95) (no

vio lation when officers waited about 10 seconds between

announcement and entry). However, because the timing question is

relevant in § 3109 cases only to the extent necessary to imply

refusal of admittance by the occupant, these cases are of little

valu e in determining how long state officers must wait before

breaking in under the Fourth Amendment reasonableness standard. It

is possible that a delay in a particular case might be too short to

imply refusal of admittance under § 3109, but would be reasonable

for Fourth Amendment purposes because of exigent circumstances such

as the potential for destruction of evidence or danger to law

enforcement officers or innocent occupants.

There fore we must approach the Fourth Amendment timing

question in this case as one of first impressio n for this Court.6

We will resist the temptation to create a bright-line standard for

all cases, i.e., five seconds or less is not long enough and more

than five seconds is. We will only say that the officers in this

case waited long enough after knocking and announcing their

presence and purpose. In drug cases, where drug traffickers may so

easily and quickly destroy the evidence of their illegal enterprise

by simply flushing it down the drain, 15 to 20 seconds is certainly

long enough for officers to wait before assuming the worst and

making a forced entry. See United States v. Moore , 956 F.2d 843,

850 (8th Cir. 1992)(“It is reasonable for police officers to assume

that suspects selling illegal drugs in small quantities from a

residence that has normal plumbing facilities will attempt to

destroy those drugs....”). Given the undisputed evidence that the

officers knocked and announced their intentions before entering the

residence, and given the possibility that a longer wait might well

have resulted in the destruction of evidence, the officers’ actions

did not violate the common-law “knock-and-announce” principle.

Accordingly, the dist rict court did not err in denying the

suppression motion.

III.

SUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION

Jones argues that the eviden ce at trial was insufficient to

prove that he knowingly possessed the drugs, the revolver, and the

amm unition. The crux of Jones’ argument is that there was a

logical explanation fo r his presence in the raided premises and

that there is evidence that others could have been the culprits.

This argument ignores the standard of appellate review; the7

Governm ent is not required to present enough evidence to exclude

every hypothesis of innocence. U nited States v. Bell

, 678 F.2d

547, 549 (5th Cir. 1982) (en banc).

Jones moved for a judgment of acquittal at the close of all

the evidence. Accordingly, the standard of review for sufficiency

of evidence is whether any reasonable trier of fact could have

found that the evidence established the essential elements of the

cri me beyond a reasonable doubt. U nited States v. Alix

, 86 F.3d

429, 435 (5th Cir. 1996). The jury is free to choose among all

reasonable constructions of the evidence. U nited States v. Chaney

,

964 F.2d 437, 448 (5th Cir. 1992). “In evaluating the sufficiency

of the evidence, [the court] consider[s] the evidence in the light

most favorable to the government with all reasonable inferences and

credibility choices made in support of the verdict.” United States

v. Ivy , 973 F.2d 1184, 1188 (5th Cir. 1992).

To prove possession with the in tent to distribute, the

Government must prove that Jones knowingly possessed the drugs with

the intent to distribute. United States v. Reyes , 102 F.3d 1361,

1365 n.4 (5th Cir. 1996). To prove possession of a firearm or

ammunition, the Government must prove that Jones had been convicted

of a felony and that he knowingly possessed a firearm or ammunition

in or affecting interstate commerce. 18 U.S.C. § 922(g); United

States v. Ybarra , 70 F.3d 362, 365 (5th Cir. 1995), cert. denied

,

116 S. Ct. 1582 (1996).

Possession may be actual or constructive and may be proved by

circumstantial evidence. C ardenas

, 9 F.3d at 1158 (drugs); U nited

States v. Knezek

, 964 F.2d 394, 400 (5th Cir. 1992) (firearms);8

United States v. McKnight

, 953 F.2d 898, 901 (5th Cir. 1992)

(firearms). Constructive possession is the knowing exercise of or

the knowing power or right to exercise dominion and control over

the contraband. C ardenas

, 9 F.3d at 1158 (drugs); Knezek

, 964 F.2d

at 400 (firearms). One who owns or exercises dominion or control

over the premises where contraband is found may be deemed to

possess the contraband. U nited States v. Sanchez-Sotelo , 8 F.3d

202, 208-09 (5th Cir. 1993) (drugs); Knezek

, 964 F.2d at 400

(“constructive possession may be . . . inferred from the exercise

of dominion or control over the vehicle in which the [weapon] is

found”). Ownership of the firearm is not requisite to proving

possession. U

nited States v. Robinson

, 857 F.2d 1006, 1009 (5th

Cir. 1988).

The evidence at trial was sufficient for the jury to find that

Jones knowingly possessed the drugs, revolver, and ammunition.

Sergeant Pat Powell testified that Jones told him that he was the

only person in the apartment when the officers arrived and that it

was his apartment. He appeared to be folding clothes when the

officers arrived. Detective Alton Blaise testified that when asked

about any drugs in the apartment, Jones answered, “Yes, I have some

cocaine.” Sargeant Powell asked Jones to show them where the drugs

were kept. Jones led the officers to a robe in a bedroom and said

“that’s all of it.” Officers recovered a “substantial amount of

crack cocaine” f rom a pocket in the robe worth up to $15,000.

Officers also found in the bedroom containing the drugs a loaded

revolver be tween the mattress and box springs, a personal letter

addressed to Jones at the apartment address, and a receipt from9

Sou thwestern Bell with his name and the apartment address.

Officers also found an O’Haus metric scale commonly used to measure

drugs, $670 cash (hidden under a cushion of the love seat), a piece

of notebook paper containing Jones’ writing that appeared to be a

record of drug transactions, and twenty rounds of “38 ammunition”.

The landlord for the apartment testified that she had a verbal

lease only with Jones, Jones ha d been the only person to pay the

rent, Jones usually paid the rent in cash, and Jones appeared to be

the only person living there.

Viewing all the evidence in a light most favorable to the

verdict, a rational jury could have found Jones knowingly possessed

the drugs, revolver, and ammunition. Accordingly, the judgment of

the district court must be affirmed.

AFFIRMED.