USA v. Dickerson, 98-6452

• Citation: 195 F.3d 1183
• Decision Date: 02 October 1999
• Docket Number: No. 98-6452,98-6452
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee v. ALFRED ANDRE DICKERSON, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1183

195 F.3d 1183 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee v. ALFRED ANDRE DICKERSON, Defendant-Appellant.

No. 98-6452

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

October 2, 1999

APPEAL FROM UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. D.C. No. CR-97-195-T

[Copyrighted Material Omitted] J. David Ogle, of Martin Law Office, Oklahoma City, Oklahoma, for the appellant.

Kim Kakish, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with her on the brief), Oklahoma City, Oklahoma, for the appellee.

Before ANDERSON, BRORBY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Alfred Andre Dickerson appeals his conviction and sentence for managing or controlling a building and making it available for use for the purpose of illegal drug activity in violation of 21 U.S.C. 856(a)(2). We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

I.

In the fall of 1994, Oklahoma City police began investigating Dickerson as a possible supplier of crack cocaine. On October 21, 1994, the police obtained a "knock and announce" search warrant for Dickerson's residence in Oklahoma City. At approximately 9:47 p.m., a group of eleven officers, all wearing some type of clothing identifying them as police, arrived at Dickerson's residence to execute the warrant. To the officers' surprise, they saw Dickerson coming out the front door of the house and three or four persons in a vehicle parked in the driveway. In order to secure all of these individuals, one officer approached the front porch of the house while two or three officers approached the vehicle. The officer who approached Dickerson on the front porch announced her identity and attempted to physically secure him. Dickerson kicked the officer off the porch and began running away from the house. Other officers yelled at Dickerson to "halt." Ultimately, he was corralled by officers in the street and, after a brief fight, was arrested. As for the occupants of the vehicle, officers secured them after loudly announcing they were police officers and yelling, "Keep your hands up." Record Vol. IV, at 18.

Lieutenant Robert Biby, the officer in charge of the search, concluded the remaining occupants inside the house likely had heard the yelling and commotion through the partially open front door and had been alerted to the presence of police officers. Accordingly, he decided to dispense with the "knock and announce" requirement. Although he had no specific information indicating there were firearms inside the house, he was concerned the occupants might have firearms and use them against the officers. He also was concerned there would be an opportunity for the occupants to destroy any drugs inside the house. According to Biby, it was very easy to dispose of crack cocaine in the quantity alleged to have been distributed by Dickerson (i.e., $20 rock size).

In accordance with Biby's directions, four or five officers went into the house without knocking or waiting for a response from the remaining occupants. The officers loudly announced, "Police, search warrant," as they crossed the threshold of the house. Id. at 21. During the ensuing search of the house, officers discovered approximately 196 grams of crack cocaine, a large quantity of cash, and firearms.

Dickerson was indicted on various drug-related offenses. His motion to suppress evidence obtained during the search of his residence was denied and he entered into a conditional plea agreement with the government. In connection with that agreement, a superseding information was filed charging him with one count of knowingly and intentionally making available for use a residence for the purpose of unlawfully distributing crack cocaine in violation of 21 U.S.C. 856(a)(2). Dickerson pleaded guilty to that single charge and was subsequently sentenced to a term of imprisonment of 151 months.

II.

Denial of motion to suppress

Dickerson contends the district court erred in denying his motion to suppress evidence obtained during the search of his residence. According to Dickerson, the officers violated the terms of the "knock and announce" search warrant by entering his residence without first knocking or waiting for the remaining occupants to respond. Dickerson further argues there were no exigent circumstances that allowed the officers to ignore the "knock and announce" requirement of the warrant. He also argues the officers violated Oklahoma law because the warrant was executed after 10:00 p.m.¹

In reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government and accept the district court's factual findings unless clearly erroneous. United States v. Green, 178 F.3d 1099, 1104 (10th Cir. 1999). The ultimate determination of reasonableness under the Fourth Amendment is a question of law we review de novo, considering the totality of the circumstances. Id.

The issue here is whether the failure on the part of the officers to knock and announce their presence before seeking entry to Dickerson's residence rendered the ensuing search and seizure of evidence constitutionally unreasonable. In Wilson v. Arkansas, 514 U.S. 927, 929 (1995), the Supreme Court held that "the common-law 'knock and announce' principle forms a part of the reasonableness inquiry under the Fourth Amendment." The Court was careful to point out, however, that "the common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances." Id. at 934. Indeed, when justified by exigent circumstances, such as those "presenting a threat of physical violence" or "where police officers have reason to believe that evidence would likely be destroyed if advance notice were given," the presumption in favor of announcement must yield. Id. at 936; see also Richards v. Wisconsin, 520 U.S. 385, 394 (1997) ("In order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.").

The district court, in rejecting Dickerson's motion to suppress, concluded that exigent circumstances justified the "no-knock" entry into Dickerson's residence. In reaching this conclusion, the court made two important subsidiary factual findings. First, the court found that the remaining adult occupants of the house, two of whom were in the living room at the front of the house, were alerted to the presence of the police because of the activities that occurred immediately outside the house prior to entry (i.e., the arrest of Dickerson and the securing of the individuals in the vehicle). Second, the court found it was reasonable for Biby "to believe that the officers' safety was compromised and that evidence could be destroyed if further delay occurred." Record Vol. I, Doc. 74, at 6.

Having carefully examined the transcript of the suppression hearing, we conclude the district court's factual findings are well supported by the evidence. It was essentially uncontroverted that the officers who executed the warrant yelled loudly during their chase and arrest of Dickerson, loudly announced their presence to the occupants of the vehicle in the driveway, and wore clothing that clearly identified them as law enforcement officers. Further, it was uncontroverted that the front door of the residence was partially open during all of these events. Taken together, this evidence was clearly sufficient to support Biby's belief that any remaining occupants of the house were aware of the officers' presence. Although Dickerson's mother, one of the two adults found by the officers in the living room of the house, testified she was not aware of the officers until they entered the house, her testimony was obviously rejected by the district court as lacking credibility. Even assuming arguendo that her testimony was truthful, the proper focus is on what Biby reasonably believed at the time he decided to dispense with the "knock and announce" requirement and not on whether the occupants of the house were actually aware of the presence of the officers. See Richards, 520 U.S. at 394 (stating that focus is on whether the police had "reasonable suspicion" that knocking and announcing would be dangerous or futile, or would inhibit effective investigation).

Based upon these facts, we conclude that exigent circumstances justified the no-knock entry into Dickerson's residence. See United States v. Dahlman, 13 F.3d 1391, 1398 (10th Cir. 1993) (holding that whether exigent circumstances justify a "no-knock" entry is a mixed question of law and fact subject to de novo review). In particular, given Biby's reasonable suspicion that any remaining occupants of the house were aware of the officers' presence, we conclude it was likewise reasonable for him to believe those occupants might attempt to immediately destroy any drugs in the house. The possibility of evidence being destroyed created exigent circumstances that allowed the police to enter the house without first knocking and announcing.²

Dickerson's argument that the search occurred after 10:00 p.m. and thereby violated Oklahoma law is without merit. First, the district court found that the search occurred prior to 10:00 p.m., and this finding is not clearly erroneous given the evidence presented at the suppression hearing. See Record IV, at 20-21 (indicating police arrived at 9:47 p.m. and secured Dickerson and the other individuals outside the house in less than a minute). In any event, "[i]t is . . . well established in this circuit that 'in federal prosecutions the test of reasonableness in relation to the Fourth Amendment . . . must be determined by Federal law even though the police actions are those of state police officers.'" United States...