U.S. v. McGee, 01-2554.

• Decision Date: 12 February 2002
• Docket Number: No. 01-2554.,01-2554.
• Citation: 280 F.3d 803
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frederick D. MCGEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

280 F.3d 803

UNITED STATES of America, Plaintiff-Appellee, v. Frederick D. MCGEE, Defendant-Appellant.

No. 01-2554.

United States Court of Appeals, Seventh Circuit.

Argued January 9, 2002.

Decided February 12, 2002.

Donald A. Allegro (argued), Office of the U.S. Attorney, Rock Island, IL, for plaintiff-appellee.

George F. Taseff (argued), Office of the Federal Public Defender, Peoria, IL, for defendant-appellant.

Before FLAUM, Chief Judge, and WOOD, Jr., and EASTERBROOK, Circuit Judges.

FLAUM, Chief Judge.

The appellant, Frederick D. McGee, has filed the instant appeal contesting the district court's denial of his motion to suppress evidence gained by the government after it executed a search warrant of his premises. According to McGee, the government failed to wait an appropriate amount of time from the announcement of its presence outside his home and its forced entry into his apartment. For the reasons stated herein, we affirm the decision of the district court.

I. BACKGROUND

In April of 2000, federal agents, acting on suspicion of McGee's involvement in drug trafficking, searched the trash that McGee had left in the alley behind his home. In conducting this search, they discovered indicia of drug trafficking (i.e., residue of crack cocaine and plastic baggies). Based upon this information, they sought and obtained a warrant to search McGee's residence. Federal agents arrived at McGee's residence on the morning of April 27, 2000 to execute the warrant.

McGee's apartment was located in a Victorian house that had been divided into four units. His residence occupied the first floor of the structure and could be accessed from both a front and rear door. Upon arrival at McGee's residence, the agents noticed that McGee was entering through the rear entrance. The federal agents decided to enter the structure through the front door. While the entry team was preparing to enter McGee's apartment through the front entrance of the building, other officers were positioned outside its rear.

Shortly after McGee entered the rear of the residence, the entry team began banging on the outer door of the residence and yelling, "FBI, search warrant." According to the record, from the moment the federal officers began banging upon the door, they continuously yelled "FBI, search warrant." The agents noticed that the outer door of the residence was unlocked and then opened that door and proceeded into a common foyer that contained a door leading to McGee's apartment. While the entry team was proceeding through the front door, the agents stationed at the rear of the residence noticed that, once the announcement had been made, McGee left his apartment through the rear door, glanced at them, and then proceeded up the rear staircase of his building. The officers at the rear took McGee into their custody.

After hearing no acknowledgment from inside, the entry team began to break down the inner door to McGee's apartment. The agents had to batter the door several times before it was successfully breached. The testimony at the suppression hearing established that "approximately ten seconds" after the knocking had begun on the residence's outer door, the entry team began to forcibly enter McGee's apartment. After McGee's door had been successfully broken, agents discovered drugs and a loaded handgun in the headboard of his bed.

As a result of the search conducted in McGee's apartment, the government indicted McGee for possession with intent to distribute at least 50 grams of a substance containing a cocaine base and for the unlawful possession of a firearm by a felon. At his trial, McGee moved to suppress all evidence gleaned as a result of the government's search of his premises. According to McGee, the government violated the so-called "knock and announce" rule when its agents forcibly entered his apartment just ten seconds after announcing their presence. The district court denied McGee's motion to suppress and his subsequent motion to reconsider. McGee then entered a conditional plea of guilty to Count I of the indictment and specifically reserved, in writing, his right to appeal the district court's denial of his motion to suppress.

II. DISCUSSION

In examining a district court's denial of a motion to suppress, we review its legal conclusions de novo and its factual findings for clear error. See United States v. Brown, 188 F.3d 860, 864 (7th Cir.1999).

The "knock and announce rule" requires that law enforcement agents, executing a valid search warrant upon a premises, wait a reasonable amount of time from their first knock (or announcement) at the premises, to their forcibly entry. See Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). In the Wilson case, the Supreme Court plainly stated that the principles underlying the common-law "knock and announce" requirement "form[] a part of the reasonableness requirement under the Fourth Amendment." Id. at 929, 115 S.Ct. 1914. However, while the Supreme Court has stated that the "knock and announce" rule must form part of a court's Fourth Amendment inquiry into the reasonableness of a search, it has also expressly found that "the Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Id. at 934, 115 S.Ct. 1914. In particular, the Court noted that the "knock and announce" rule could give way "under circumstances 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." Id. Although most drug investigations arguably involve at...