U.S. v. McCloud

• Decision Date: 05 November 1997
• Docket Number: No. 96-3353,96-3353
• Citation: 127 F.3d 1284
• Parties: 97 CJ C.A.R. 2719 UNITED STATES of America, Plaintiff-Appellee, v. Ike McCLOUD, JR., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1284

127 F.3d 1284

97 CJ C.A.R. 2719

UNITED STATES of America, Plaintiff-Appellee, v. Ike McCLOUD, JR., Defendant-Appellant.

No. 96-3353.

United States Court of Appeals, Tenth Circuit.

Nov. 5, 1997.

Submitted on the briefs: ^*

Robin D. Fowler, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with her on brief, Topeka, KS), for Defendant-Appellant.

Bruce W. Simon, Kansas City, MO, for Plaintiff-Appellee.

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

HENRY, Circuit Judge.

On June 20, 1996, defendant-appellant Ike McCloud, Jr. was convicted by a jury of two counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). He appeals directly to this court from that conviction and petitions us for a new trial because, he claims, the district court should have granted his motion to exclude evidence seized from his home and used by the government to convict him. Mr. McCloud contends that the evidence should be excluded because, although the police entered his house pursuant to a valid search warrant, they did not comply with 18 U.S.C. § 3109, ¹ the "knock and announce" statute. If we do not grant Mr. McCloud a new trial, then he asks us to find that the district court erred in computing his offense level under the sentencing guidelines. We decline to remand for retrial because, if the district court erred in admitting the evidence seized at Mr. McCloud's home, such error was harmless beyond a reasonable doubt. Additionally, we conclude that the district court correctly computed Mr. McCloud's offense level. Therefore, we deny Mr. McCloud's motion for a new trial and his motion to remand for resentencing.

I. THE SEARCH OF MR. MCCLOUD'S RESIDENCE

A. Standard of Review

"On appeal from a motion to suppress, we accept the district court's factual findings unless clearly erroneous, review questions of law de novo, and view the evidence in the light most favorable to the prevailing party." United States v. Maden, 64 F.3d 1505, 1508 (10th Cir.1995) (citation omitted). "The reasonableness of a search and seizure under the Fourth Amendment is a question of law we review de novo." United States v. McCarty, 82 F.3d 943, 947 (10th Cir.1996).

B. Background

At approximately 6:05 a.m. on Saturday, March 30, 1996, members of the Selective Crime Occurrence Reduction Enforcement (SCORE) unit, executed a search warrant on Mr. McCloud's residence at 7037 Haskell in Kansas City. See Rec. vol. VI, doc. 74, at 16 19-23. The SCORE unit is the tactical unit of the Kansas City, Kansas, Police Department, and members of that unit have been "specially trained" to serve warrants. See id. at 20-21. Officer Chris Alec Hopkins was responsible for announcing the SCORE unit's presence that morning, and he has personally been involved in the service of over 400 warrants. See id. at 22. The government made no allegations of drugs or weapons at 7037 Haskell in its application for the search warrant; the purpose of the warrant was to search the house for books and records relating to Mr. McCloud's cocaine sales because, according to the officer-affiant, such documents are often kept at the home of drug sellers. See id. at 16; Rec. vol. I, doc. 26, at 4 and attached Aff. in Support of a Search Warrant, Introduction p c.

The SCORE unit arrived at Mr. McCloud's house at 6:05 a.m. because they expected the residents to be sleepy. See Rec. vol. VI, doc. 74, at 44. They stealthily approached the door of the home, see id. at 37-38, and hit it with a pry bar and battering ram. See id. at 28, 35. As is his custom, see id. at 27, Officer Hopkins began yelling "Police, search warrant" after he heard the officers hit the door. See id. at 33, 36, 42. Officer Hopkins was not aware whether there was a doorbell on the home or not, see id. at 34, but he evidently considered hitting the door with the pry tool and battering ram to be equivalent. See id. at 42 (Mr. McCloud's attorney: "By knocking you mean actual use of the pry tool?" Officer Hopkins: "That's certainly a knock, sir."). Although the unit normally can enter a residence very quickly with the pry bar and battering ram, see id. at 28, they could not get the pry bar properly wedged into the locked outer security door. See id. Therefore, after roughly three strikes on the door with the battering ram, see id. at 35, 59, the police brought a set of hooks attached to a winch on a police van, set them on the outer door, and yanked it off its frame. See id. at 28, 35. Roughly twenty seconds expired while the police were battering the door. See id. at 60. Another minute elapsed before the unit could attach the hooks and the winch and tear the door off its frame. See id. at 61. The inner door to the house was unlocked and opened with a turn of the knob. See id. at 28, 34-35. Therefore, it was approximately one minute and 20 seconds before the police gained entry to the house. See id. at 61. During that time, no one inside said "hold up, we're coming to the door" or anything of that nature. Id. at 28-29. In fact, there were no sounds at all from inside the residence during the entry efforts. See id. at 29.

When they gained entry to the residence and searched the house, the SCORE unit found Mr. McCloud, his wife, and their eleven-month-old child in the back bedroom, see id. at 29-30, where they had been asleep. See id. at 85. The police also discovered and seized roughly $6,000 and a sheet titled "Bills for March 1996" which referred to other residences where the police's cooperating witness had paid Mr. McCloud for drugs. See Rec. vol. III, doc. 69, at 39-44.

Mr. McCloud moved to suppress the evidence obtained in the search of his residence. See Rec. vol. I, doc. 24. At the motion hearing, Officer Hopkins testified on direct examination that the announcement he has been trained to give has two purposes: (1) "it's a legal requirement," and (2) "we want the people inside that residence to know that we are, indeed, police officers because ... [in] a shooting incident ... the first thing they say is 'We didn't know they were policemen breaking into our house.' " See Rec. vol. VI, doc. 74, at 30-31. On cross-examination, he testified:

Officer Hopkins: [W]e try to be as stealthy as we can until we get up there. And then when I hear--once the banging--once they start knocking, banging on the door, and I make the announcement.

Mr. McCloud's atty: In other words, your announcement is designed to alert the occupants to the fact that you are police officers and not criminals.

Officer Hopkins: That is correct.

Mr. McCloud's atty: It is not designed to invite the attention of the occupants of the house to open the door in response to the warrant.

Officer Hopkins: That is an option that they can exercise, yes.

Mr. McCloud's atty: Yes. It would be difficult to exercise this option without any notice, however, would it not, Officer?

Officer Hopkins: That is correct.

Mr. McCloud's atty: And, in fact, there was in this case no notice. As soon as there's hammering on the door, then at that point you're raising the cry, "search warrant, police."

Officer Hopkins: That is correct.

Id. at 37-38.

The court denied Mr. McCloud's motion to suppress because:

I don't believe this was simultaneous entry, and I think that's the--the evil, if you will, that [18 U.S.C. § 3109] is aimed at deterring and preventing so that people simply don't have the police coming charging through the door, number one, either not announced or with just simply a token simultaneous announcement.

This case would have been more interesting if that door would have popped off when [the SCORE unit was] trying to pry it with the pry bar. However, perhaps fortunately for the Government, that didn't happen. The amount of time that elapsed from the point that Officer Hopkins commenced yelling and [the other members of the unit] started hammering the door with the pry bar to the time that they actually gained entry was roughly a minute and 20 seconds, according to Hopkin's testimony....

....

... I think under these circumstances, the time frame was reasonable.

Id. at 89-90.

C. Analysis

Although the district court's determination that the search was reasonable, resting as it did on the strength of Mr. McCloud's door, ² suggests that the Kansas City Police Department is relying more on luck than on constitutional mandates, ³ we have no legal problem with the outcome of the district court's ruling because any error was harmless beyond a reasonable doubt.

If evidence was obtained in violation of the Fourth Amendment and admitted at trial, the government must prove beyond a reasonable doubt that such evidence did not contribute to the guilty verdict. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In United States v. Hill, 60 F.3d 672, 681 (10th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 432, 133 L.Ed.2d 347 (1995), this court read Chapman to require that the appellate court be able to declare a belief that the constitutional error was harmless beyond a reasonable doubt. See id. We now review the record to determine if we can make such a declaration.

As mentioned above, from 7307 Haskell the government seized and admitted into evidence roughly $6,000 in cash and a document which tended to show that Mr. McCloud was paying bills for the three other residences where the cooperating witness had paid him for drugs and seen him cooking crack. The government also elicited testimony that the $6,000 was seized in the search of Mr. McCloud's residence and that drug transactions are normally conducted in cash. If we excise this peripheral evidence from the government's case, proof of Mr. McCloud's drug trafficking is hardly less overwhelming.

The government called more than a dozen witnesses and presented the following evidence to the jury of Mr. McCloud's guilt:

(1) testimony which was corroborated by at least two witnesses

(a) that Mr. McCloud was the cooperating...