338 F.3d 913 (8th Cir. 2003), 03-1146, U.S. v. Vesey

Docket Nº:03-1146
Citation:338 F.3d 913
Party Name:U.S. v. Vesey
Case Date:August 05, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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338 F.3d 913 (8th Cir. 2003)

UNITED STATES of America, Appellee,

v.

Clayton VESEY, Appellant.

No. 03-1146.

United States Court of Appeals, Eighth Circuit

August 5, 2003

Submitted: June 10, 2003.

Rehearing Denied: Sept. 29, 2003.

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[Copyrighted Material Omitted]

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Raphael M. Scheetz, argued, Cedar Rapids, IA, for appellant.

Daniel C. Tvedt, argued, Asst. U.S. Atty., Cedar Rapids, IA, for appellee.

Before MORRIS SHEPPARD ARNOLD and RILEY, Circuit Judges, and BOGUE, 1 District Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Clayton Vesey was convicted in the district court 2 of delivery of cocaine base and possession with intent to deliver cocaine base and powder cocaine, see 21 U.S.C. § 841(a)(1). On appeal, Mr. Vesey contends that the district court should have granted his motion to suppress evidence, stricken portions of the government's expert witness's testimony, and admitted the testimony of his own expert witness. We affirm.

I.

Mr. Vesey contends that the district court erred in denying his motion to suppress evidence because the search that yielded the evidence was unconstitutional. According to Mr. Vesey, the search violated his fourth amendment rights because the police forcibly entered his home only ten seconds after knocking and announcing their presence. "We review the district court's fact-finding in support of its ruling on the motion to suppress for clear error, and we review de novo the district court's ultimate application of the law to the facts." United States v. Tyler, 238 F.3d 1036, 1038 (8th Cir. 2001).

Under the fourth amendment's so-called "knock-and-announce" principle, whether police officers have waited long enough after knocking to infer that they have been constructively denied admittance, and thus may enter, "does not turn on any hard and fast time limit, but depends upon the circumstances confronting the officer serving the warrant," see United States v. Lucht, 18 F.3d 541, 549 (8th Cir. 1994), cert. denied, 513 U.S. 949, 115 S.Ct. 363, 130 L.Ed.2d 316 (1994); United States v. Goodson, 165 F.3d 610, 614 & n. 2 (8th Cir. 1999), cert. denied, 527 U.S. 1030, 119 S.Ct. 2385, 144 L.Ed.2d 787 (1999). An officer's delay before entering ordinarily should be long enough to ensure that the resident has had time to hear the police knock and to answer the door. See generally Wilson v. Arkansas, 514 U.S. 927, 931-32, 936, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995); see also Richards v. Wisconsin, 520 U.S. 385, 393 n. 5, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). The fourth amendment's reasonableness inquiry is flexible, however, Wilson, 514 U.S. at 934, 115 S.Ct. 1914, and the suspected presence of drugs in the place to be searched has been held to lessen the time that police officers are required to wait, United States v. Spikes, 158 F.3d 913, 926 (6th Cir. 1998),

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cert. denied, 525 U.S. 1086, 119 S.Ct. 836, 142 L.Ed.2d 692 (1999).

The circumstances of this case amply support the district court's conclusion that the police officers' ten-second delay was reasonable under the fourth amendment. Having obtained a warrant to search for drugs and related items, the officers went to Mr. Vesey's apartment. They pounded on the door three times and yelled out, "Police department, search warrant, open the door." They waited "a couple of seconds," as the district judge put it, and, hearing no response, they pounded three more times and repeated their announcement. After waiting and again hearing no response, they forced the door open. We think that it was reasonable for the officers to believe that their pounding and yelling would have immediately alerted anyone in the small apartment of their presence at the door, particularly because they arrived in the afternoon, when it was likely that any occupants were awake. Given the size of the apartment, the time of day, the lack of any verbal response, and the suspected presence of drugs, we conclude that ten seconds was a reasonable period for the police to wait before their forced entry. We therefore agree with the district court that Mr. Vesey's fourth amendment rights were not violated.

II.

During the search of Mr. Vesey's apartment, the police found a scale, which the government offered into evidence to support the charge that Mr. Vesey was a drug dealer. Mr. Vesey maintains that the district court erred in allowing the government's expert witness to testify that he had "never seen a [drug] user use a scale," and that those who used scales were "all people that are involved in distribution." Mr. Vesey argues that the admission of this evidence violated Federal Rule of Evidence 704(b).

Rule 704(b) prohibits an expert from testifying as to whether a defendant had "the mental state or condition constituting an element of the crime charged." Testimony that, when combined with other evidence, might imply or otherwise cause a jury to infer this ultimate conclusion, however, is permitted under the rule. See United States v. Dunn, 846 F.2d 761,...

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