U.S. v. Jenkins

• Decision Date: 10 May 1999
• Docket Number: No. 98-3017,98-3017
• Parties: UNITED STATES of America, Plaintiff--Appellee, v. Demetrius L. JENKINS, Defendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1208

175 F.3d 1208

UNITED STATES of America, Plaintiff--Appellee, v. Demetrius L. JENKINS, Defendant--Appellant.

No. 98-3017.

United States Court of Appeals, Tenth Circuit.

May 10, 1999.

Steven K. Gradert, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender with him on the brief), Wichita, Kansas, for Defendant-Appellant.

Leon J. Patton, Assistant United States Attorney, Kansas City, Kansas (Jackie N. Williams, United States Attorney, and D. Blair Watson, Assistant United States Attorney, on the brief, Wichita, Kansas), for Plaintiff-Appellee.

Before BRORBY, McKAY, and EBEL, Circuit Judges.

McKAY, Circuit Judge.

Defendant Demetrius L. Jenkins directly appeals his convictions of possession with intent to distribute cocaine base and possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Defendant claims that the district court erroneously denied his pretrial motion to suppress evidence obtained in connection with the execution of a search warrant. He also argues that the evidence presented at trial was insufficient to support his convictions of possession with intent to distribute cocaine base and marijuana.

I.

On March 14, 1997, the Wichita Police Department executed a search warrant on Codefendant Monika K. Payne's residence, where Defendant regularly spent the night. The record indicates that, before entering the residence, officers knocked loudly on the outside screen door and announced that they were from the Wichita Police Department and had a search warrant. Officers waited approximately ten to fifteen seconds before forcing open the locked screen door. After opening the screen door, one or two more officers again announced their identity as police officers and their possession of a search warrant. Two to three seconds later the officers forced open the interior door with a battering ram, and, once they gained entry to the residence, they again announced their identity and authority. The total time between the officers' initial knock on the screen door and their application of force to the interior door was about fourteen to twenty seconds.

After entering the residence, officers saw Ms. Payne and took her into custody. Officers then located Defendant and Malaycia Payne, who is the four-year-old daughter of Defendant and Ms. Payne, in the southwest bedroom of the residence. Malaycia was lying on a small bed or mattress on the floor, and officers testified that they found a loaded nine-millimeter gun about two to three feet from her head. Underneath the bed in which Defendant was lying when he was found, officers located a brown case which contained a shotgun. In a night stand next to the bed, officers found marijuana, approximately $3,000 in cash which included a marked twenty-dollar bill used by a police informant to purchase cocaine base from Defendant, and two clear bags containing crack cocaine. Officers also discovered marijuana and roach clips in a cigar box, plastic sandwich bags, marijuana in a laundry basket, and $203 in cash and Ms. Payne's driver's license in a pocket of a pair of women's jeans. In addition, officers found a plastic bag containing cocaine base and marijuana cigarettes on top of a dresser, two small bags of marijuana on top of a large glass fish tank, and another plastic bag containing butts of marijuana cigarettes in a closet in the bedroom.

In searching the remainder of the residence, officers discovered a partially-smoked marijuana cigarette in an ashtray in the bathroom, a small plastic bag containing white powder residue on a window sill in the kitchen, and another plastic bag with white residue in a kitchen cabinet. They also found a plastic bag containing crack cocaine in a hole covered with a piece of particle board in the middle of the backyard of the residence. There is a four-foot fence surrounding the backyard of the residence, and a fraternity house is located directly behind the fence.

Defendant was indicted on March 19, 1997, with one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On May 21, 1997, Defendant was charged in a superseding indictment with the following offenses: possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and two counts of possession of a firearm after being convicted of a felony in violation of 18 U.S.C. § 922(g)(1).

Defendant filed a motion to suppress, alleging that the search warrant was invalid and that the officers "failed to comply with the requirements of knocking and announcing their purpose prior to entry into the residence by force." R., Vol. I, Doc. 21. The district court denied the motion after an evidentiary hearing, finding that the warrant was validly issued. ¹ The court also determined that the execution of the warrant was proper, explaining that although it had "some concerns about [ten] seconds being an adequate period of time to wait," the amount of time the officers waited before breaking open the door was not unreasonable under the circumstances. Id., Vol. II at 75.

After a jury trial, Defendant was convicted of one count of possession with intent to distribute cocaine base and one count of possession with intent to distribute marijuana. He received consecutive sentences of 210 months' and sixty months' incarceration, and he timely filed a notice of appeal.

On appeal, Defendant argues that the district court should have granted his motion to suppress the evidence seized from Ms. Payne's residence and used by the Government to convict him. In support of this argument, Defendant contends that the alleged Wichita Police Department policy to wait only ten seconds after knocking and announcing before forcibly entering a residence violates the "knock and announce" statute, 18 U.S.C. § 3109, as does the police officers' execution of the warrant in this case. Defendant also claims that the evidence was insufficient to support his convictions.

II.

We first address Defendant's arguments regarding the district court's denial of his motion to suppress. "On appeal from the denial of a motion to suppress, we review the evidence in the light most favorable to the government and we review the district court's factual findings only for clear error." United States v. Lambert, 46 F.3d 1064, 1067 (10th Cir.1995). Because the district court made no specific findings in support of its ruling that the officers waited a reasonable amount of time after knocking and announcing, "we must uphold the ruling 'if there is any reasonable view of the evidence to support it.' " United States v. Donnes, 947 F.2d 1430, 1432 (10th Cir.1991) (internal quotation marks and citation omitted). "[T]he reasonableness of a search and seizure under the Fourth Amendment is a question of law which we review de novo." United States v. Myers, 106 F.3d 936, 939 (10th Cir.), cert. denied, 520 U.S. 1270, 117 S.Ct. 2446, 138 L.Ed.2d 205 (1997).

Because the officers in this case were state officers executing a state warrant, "they were not governed in their actions by [18 U.S.C. § 3109] but rather by the federal constitution, specifically the Fourth Amendment." ² United States v. McCloud, 127 F.3d 1284, 1286 n. 1 (10th Cir.1997); see also United States v. Moland, 996 F.2d 259, 261 (10th Cir.1993) (stating that section 3109 does not apply to state investigations by state officers), cert denied, 510 U.S. 1057, 114 S.Ct. 722, 126 L.Ed.2d 686 (1994). Although section 3109 does not govern this case, the applicable standards under the statute and the Constitution are similar. See McCloud, 127 F.3d at 1286 n. 1. Thus, we may "use § 3109 as a guide in conducting the 'reasonableness' inquiry dictated by the Fourth Amendment." United States v. Moore, 91 F.3d 96, 98 (10th Cir.1996). The statute provides: "The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant." 18 U.S.C. § 3109.

While section 3109 requires officers to provide notice of their authority and purpose before forced entry, the Supreme Court has held that the common-law knock-and-announce principle "is an element of the reasonableness inquiry under the Fourth Amendment." Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Although certain circumstances may justify entry without knocking and announcing, see id., "[t]he Fourth Amendment ... includes a general presumption that police officers executing a search warrant for a residence must announce their presence and authority before entering." Moore, 91 F.3d at 98. "If the occupants do not admit the officers within a reasonable period of time [after they have knocked and announced their presence and purpose], the officers may be deemed to be constructively refused admittance, and they may then enter by force." Id.

This court has not established a clear-cut standard by which to determine the amount of time officers must wait after knocking and announcing before forcibly entering a residence. Under certain circumstances, this court has held that waiting approximately ten seconds is reasonable. See, e.g., Myers, 106 F.3d at 940 (upholding district court's conclusion that agents who knocked loudly and waited ten seconds before entering complied with the Fourth Amendment); United States v. Knapp, 1 F.3d 1026, 1031 (10th Cir.1993) (affirming district court's determination that officers did not violate section 3109 because they waited ten to twelve seconds after knocking and announcing). By contrast, this court has found three seconds to be an unreasonably short waiting period. See Moore, 91 F.3d...