U.S. v. Keene, 89-5442

• Citation: 915 F.2d 1164
• Decision Date: 25 September 1990
• Docket Number: No. 89-5442,89-5442
• Parties: 31 Fed. R. Evid. Serv. 64 UNITED STATES of America, Appellee, v. Patrick Harm KEENE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1164

915 F.2d 1164

31 Fed. R. Evid. Serv. 64

UNITED STATES of America, Appellee, v. Patrick Harm KEENE, Appellant.

No. 89-5442.

United States Court of Appeals,

Eighth Circuit.

Submitted March 15, 1990.

Decided Sept. 25, 1990.

Michael W. McNabb, Burnsville, Minn., for appellant.

Thorwald H. Anderson, Jr., Minneapolis, Minn., for appellee.

Before McMILLIAN and BEAM, Circuit Judges, and LARSON, ^* Senior District Judge.

McMILLIAN, Circuit Judge.

Patrick Harm Keene appeals from a final judgment entered in the District Court ¹ for the District of Minnesota upon a jury verdict finding him guilty of one count of conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. Sec. 846, two counts of possession of an unregistered firearm, in violation of 26 U.S.C. Sec. 5861(d), one count of use of a firearm during a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1), and one count of possession of a firearm by a felon, in violation of 18 U.S.C. Sec. 922(g). The district court sentenced Keene to a total of 70 months imprisonment for the drug conspiracy and possession of firearms counts, and five years imprisonment for the possession of the firearm in connection with drug trafficking count, to be served consecutively, six years supervised release, and a $250 special assessment. For reversal, Keene argues that the district court erred in (1) denying his motion to suppress physical evidence seized during a search of his house because the search was an unlawful nighttime search and the police violated the knock and enter rule, (2) finding that the evidence established that he used firearms in connection with the drug trafficking offense, (3) admitting evidence of a thirteen-year-old drug conviction, and (4) improperly applying the sentencing guidelines, failing to credit him for acceptance of responsibility, and finding he was a leader of the drug conspiracy. For the reasons discussed below, we affirm the judgment of the district court.

I. Facts

In 1985 Keene and two friends assembled a methamphetamine laboratory in Keene's basement. In January 1988 an informant, who was an acquaintance of Keene's, alerted state authorities that he had seen the laboratory in Keene's basement in 1986. On January 22, 1988, state agents equipped the informant with a body transmitter. The informant then entered Keene's house. The informant observed an operating methamphetamine laboratory in Keene's basement and engaged Keene in detailed conversation about the manufacturing operation. Keene was having problems with the current run of the drug and he sought the informant's advice on increasing the operation's efficiency and the product's quality. The informant told Keene that he would try to solve Keene's problem, and he asked Keene for a sample of the drug in order to perform a chemical analysis. As the informant left Keene's house, Keene jokingly asked "what time should I expect the police over?" Keene further commented that he would "load the H & K." ² The informant left Keene's house and turned the drug sample over to state authorities.

State agents analyzed the sample delivered by the informant early in the afternoon and obtained a search warrant at 7:30 p.m. from a county district court judge. The search warrant was executed at 8:20 p.m. One state agent entered the closed, but unlocked, back door. The agent did not knock; however, he did yell "police" before entering. The agents discovered the working methamphetamine laboratory in Keene's basement. In addition, the agents found one fully loaded H & K semi-automatic rifle in Keene's bedroom, as well as a loaded over-and-under rifle/shotgun, a loaded .357 revolver, a fully loaded 9 mm semi-automatic pistol, a .22 semi-automatic pistol, a .12 gauge pump shotgun, a .12 gauge shotgun, a .25 semi-automatic pistol, and a silencer.

Keene was charged with federal drug trafficking and weapons offenses. Keene's two friends cooperated with authorities and pleaded guilty to drug manufacturing charges. The district court granted them downward departures for substantial assistance. One was sentenced to twenty-four months imprisonment, the other, to eighteen months. Keene filed motions to suppress concerning the seizures from his house. After a hearing on the suppression issues, the district court held that the warrant was properly served and that the 8:20 p.m. search did not violate the fourth amendment. The district court also found that exigent circumstances existed warranting a no-knock entry into Keene's house. The jury found Keene guilty on the five counts charged and this appeal followed.

II. Execution of Search Warrant

This court has held that a "clearly erroneous" standard of review is to be applied when assessing a district court's decision to deny a motion to suppress. United States v. Eisenberg, 807 F.2d 1446, 1449 (8th Cir.1986) (citing United States v. Lewis, 738 F.2d 916, 920 (8th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985)). We will affirm a district court's order denying a motion to suppress unless we find that the decision is unsupported by the evidence, based on an erroneous view of the applicable law, or we are left with a firm conviction that a mistake has been made. United States v. Pantazis, 816 F.2d 361, 363 (8th Cir.1987) (citing United States v. Lewis, 738 F.2d at 920). Keene argues that the search of his house was unreasonable and violated his fourth amendment rights because it was an unlawful nighttime search and because the state agents executed a no-knock entry. We disagree.

A. Nighttime Search

Because the execution of the warrant was carried out by state authorities in this case, we note that a state search must be reasonable under the fourth amendment in order for evidence to be admissible in a federal prosecution. United States v. Tate, 821 F.2d 1328, 1330 (8th Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 712, 98 L.Ed.2d 662 (1988). Keene does not dispute the district court's finding of probable cause to search his house. Rather, Keene asserts that there was no cause to search his house at night in violation of the common law prohibition against nighttime searches. ³ Keene asserts further that under common law, the definition of "night" was the period between sunset and sunrise and that definition currently applies to the reasonableness of a search under the fourth amendment. We disagree.

"A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge ... is satisfied there is probable cause to believe that grounds exist for the warrant and for its service at such time." 21 U.S.C. Sec. 879 (emphasis added). A nighttime search under this statute "requires no special showing ... other than a showing that the contraband is likely to be on the property or person to be searched at that time." Gooding v. United States, 416 U.S. 430, 458, 94 S.Ct. 1780, 1794, 40 L.Ed.2d 250 (1974) (footnote omitted). In the present case, there was probable cause to believe that controlled substances would be found on the premises and that Keene had grown suspicious after the informant's visit. Prompt execution of the warrant was reasonable under these circumstances.

Even if controlled substances were not at issue in this case, this search occurred in the daytime as defined by the federal rules. While Sec. 879 does not define "day" or "night," the Federal Rules of Criminal Procedure define "daytime" as "the hours from 6:00 a.m. to 10:00 p.m. according to local time." Fed.R.Crim.P. 41(h) advisory committee's note. Keene argues that Sec. 879 and Rule 41 do not necessarily apply to a fourth amendment analysis of the search because a search made pursuant to those rules may still be unconstitutional. The government argues correctly, however, that Sec. 879 and Rule 41 have never been held to be unconstitutional. See Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1143, 14 L.Ed.2d 8 (1965) (Warren, C.J.) ("the court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions") (footnote omitted). We agree with the district court's decision to deny the motion to suppress because the warrant was executed in compliance with 21 U.S.C. Sec. 879, and the 8:20 p.m. search was a "daytime" search under Rule 41.

B. Knock and Enter

Generally, officers executing a search warrant must announce their authority and purpose before entering a dwelling without consent. 18 U.S.C. Sec. 3109. There is, however, an exception to this "knock-purpose" rule when exigent circumstances exist. Sabbath v. United States, 391 U.S. 585, 591 n. 8, 88 S.Ct. 1755, 1759 n. 8, 20 L.Ed.2d 828 (1968) (citing Ker v. California, 374 U.S. 23, 47, 83 S.Ct. 1623, 1636, 10 L.Ed.2d 726 (1963) (Brennan, J., concurring and dissenting)). Police may enter without knocking "when the officers reasonably believe the persons to be apprehended might destroy evidence during a delay in police entry." United States v. Tracy, 835 F.2d 1267, 1270 (8th Cir.1988) (citing Ker v. California, 374 U.S. at 47, 83 S.Ct. at 1636), cert. denied, 486 U.S. 1014, 108 S.Ct. 1750, 100 L.Ed.2d 212 (1988).

In the present case, the district court found that the arresting officer entered a closed, but unlocked, door after yelling "police" and hesitating. The warrant authorized an unannounced entry to prevent destruction or removal of the controlled substances. Because of the liquid form of the narcotics seized in this case, the district court concluded that the evidence could have been easily destroyed if entry had been delayed. The district court recognized that persons who traffic in liquid narcotics often attempt to dispose of them, i.e., by pouring them down a sink or floor drain. This represented an exigent...