U.S. v. Nabors

• Decision Date: 27 April 1990
• Docket Number: No. 89-1488,89-1488
• Citation: 901 F.2d 1351
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emmett Lovell NABORS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1351

901 F.2d 1351

UNITED STATES of America, Plaintiff-Appellee, v. Emmett Lovell NABORS, Defendant-Appellant.

No. 89-1488.

United States Court of Appeals Sixth Circuit.

Argued Jan. 22, 1990.

Decided April 27, 1990.

David J. DeBold, Asst. U.S. Atty. (argued), Detroit, Mich., for plaintiff-appellee.

Douglas R. Mullkoff (argued), Ann Arbor, Mich., for defendant-appellant.

Before MARTIN and RYAN, Circuit Judges; and PECK, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

Emmett Lovell Nabors appeals his conviction and sentence for assaulting a federal agent, possession of crack cocaine with the intent to distribute, use of a firearm during the commission of both a violent crime and a drug trafficking crime, and attempted escape.

In July 1988, Special Agent Joseph Secrete, Bureau of Alcohol, Tobacco, and Firearms, began investigating Nabors, who was on probation at that time for the felony of carrying a concealed weapon, for possession of firearms. On July 21, 1988, Secrete obtained two search warrants authorizing searches for weapons and other evidence at two Detroit, Michigan residences used by Nabors. The next day, a team of federal, state, and local agents planned and initiated the search of one of those residences, an apartment occupied by Nabors and his girlfriend, Michelle Townsend.

On the day of the search, the agents saw Nabors leave the apartment. At that point, the agents cancelled the search because they wished to search the apartment when Nabors was present to ensure that a firearm would be found in his possession. However, twenty minutes later, Nabors returned to the apartment with another individual, and the agents initiated their search. The agents knocked on the apartment door and yelled, "Police!," and, "Police search warrant!" Moments later, the agents rammed the apartment door and Bureau of Alcohol, Tobacco, and Firearms Agent Roger Guthrie entered the apartment. Nabors fired two rifle shots at Guthrie, hitting him once in the right cheek. Nabors then fled the second-story apartment by jumping out of a bathroom window. He was soon apprehended by the search team following his leap.

A search of the apartment produced the rifle Nabors fired at Guthrie, a pistol and ammunition, a scale loaded with 12.757 grams of crack cocaine, and cocaine distribution paraphernalia.

On July 22, 1988, Nabors was arrested and held on a complaint charging him with the attempted murder of a federal agent, in violation of 18 U.S.C. Sec. 1114. On August 25, 1988, Nabors was indicted for attempted murder of a federal agent, 18 U.S.C. Sec. 1114, assaulting a federal agent with a deadly weapon, 18 U.S.C. Sec. 111, two counts of being a felon in possession of firearms, 18 U.S.C. Sec. 922(g)(1), possession of cocaine with the intent to distribute, 21 U.S.C. Sec. 841(a)(1), use of firearms during a drug trafficking crime, 18 U.S.C. Sec. 924(c), and use of a firearm during a crime of violence, 18 U.S.C. Sec. 924(c). He was arraigned on these charges on August 31, 1988.

On September 17, 1988, during his detention at a local jail, Nabors attempted to escape custody by impersonating another detainee who was being released on bond. A superseding indictment was issued on October 18, 1988 adding a count of attempted escape, 18 U.S.C. Sec. 751, to the original charges. Because Nabors was not indicted within thirty days of his arrest, the district court dismissed the attempted murder count which was the sole subject of the complaint filed before the magistrate at Nabors's arrest. Nabors successfully severed the attempted escape count for which he later pled guilty.

Nabors's jury trial for possession and assault began on December 20, 1988. On December 22, 1988, he was convicted on all counts. At sentencing, the court granted the government's motion to dismiss one of the two felon in possession of a firearm convictions. Nabors was sentenced to 137 months on the assault, possession of a firearm by a felon, and possession of cocaine counts. He also received two five-year sentences consecutive to the 137 months for each of his two convictions under 18 U.S.C. Sec. 924(c)(1) for the use of a firearm during a drug trafficking crime and use of a firearm during a crime of violence. In addition, Nabors received five years of supervised release after his release from custody.

Nabors first contends that the law enforcement agents violated the "knock-and-announce" requirements of 18 U.S.C. Sec. 3109 in executing the search warrant for his apartment. Consequently, Nabors argues that the evidence seized during the search should have been suppressed.

18 U.S.C. Sec. 3109 provides that:

[An] officer may break open any outer or inner door or window 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.

Nabors argues that the time between the knock-and-announcement in this case insufficiently complies with the statute.

If evidence is procured in violation of Sec. 3109, that evidence must be suppressed. Miller v. United States, 357 U.S. 301, 313-314, 78 S.Ct. 1190, 1197-1198, 2 L.Ed.2d 1332 (1958). Courts have, however, upheld searches which failed to comply with Sec. 3109 where exigent circumstances have existed which render strict compliance inappropriate and imprudent. For example, in United States v. Spinelli, 848 F.2d 26 (2d Cir.1988), the court excused the officers' noncompliance with the knock-and-announce statute where the suspect had a past history of firearm possession and a knowledge of the officers' surveillance of his residence, endangering the destruction of his drug manufacturing laboratory. Likewise, a search violating 18 U.S.C. Sec. 3109 was upheld when there were two exigent circumstance grounds; first, the defendants were believed to be armed and dangerous; second, the officers had information that the defendants had substantial quantities of drugs which could be easily disposed of. United States v. Barrientos, 758 F.2d 1152 (7th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 810, 88 L.Ed.2d 785 (1986). In United States v. Pearson, an improperly executed search under Sec. 3109 was upheld where the targeted individual was in a residence with other people and was armed. 746 F.2d 787 (11th Cir.1984). Nabors contends that the facts of this case mirror those in United States v. Rodriguez, 663 F.Supp. 585 (D.D.C.1987), where the police waited mere seconds after their announcement before entering the defendant's dwelling. In Rodriguez, however, the police had no concern for their safety due to probable firearm possession by the defendant, nor did they have any reason to believe that evidence of narcotics was on the premises.

While it might be argued that the officers waited an insufficient time prior to knocking down the door to the apartment, certainly we agree with the district court that exigent circumstances justified the officers' behavior. The affidavit for the warrant indicates that Nabors was suspected of trafficking in narcotics, was a felon in the possession of an array of firearms, and habitually wore a bullet-proof vest. We do not hold, as Nabors contends, that every time law enforcement personnel suspect that the subject of a search warrant possesses a firearm, a split-second announcement followed by a forced entry sufficiently complies with 18 U.S.C. Sec. 3109. Given the facts confronting the officers, including the threat to their own safety, the safety of those in the apartment, and the need to preserve narcotics evidence, there was compliance with the requirements of 18 U.S.C. Sec. 3109. While the officers had the opportunity to search the apartment in Nabors's absence, the decision to wait until he was present was justified by their need to prove that Nabors was a felon in the possession of a firearm. We note that law enforcement officers may not take lightly the requirement of Sec. 3109 that bursting into apartments is permitted only "after notice of [the officers'] authority and purpose [and they are] refused admittance...." 18 U.S.C. Sec. 3109. Cases in which officers make a forced entry seconds after announcing their authority and purpose will be carefully scrutinized in the future to determine whether there is compliance with the requirements of Sec. 3109. Cf. United States v. Burton, 894 F.2d 188, 192-93 (6th Cir.1990) (Jones, J., concurring). Here, in view of the exigent circumstances we have discussed, we conclude that, while the question is close, there was compliance with Sec. 3109 and the evidence discovered in the search of the apartment was properly admitted at trial.

Nabors next contends that he was tried in violation of his statutory and constitutional rights to a speedy trial. Nabors was indicted on the thirty-third day following his arrest. 18 U.S.C. Sec. 3161(b) requires that an indictment must be filed within thirty days of an arrest. At the time he was indicted, the sole offense charged in the complaint against him was the attempted killing of a federal agent. Consequently, the district court, under 18 U.S.C. Sec. 3162(a)(1), dismissed the attempted murder count. Nabors argues that if one count in the indictment must be dropped because of a constitutional or statutory speedy trial violation, the entire indictment must be dropped. On this, he is wrong. The statutory and constitutional provisions governing the speedy trial of a criminal defendant do not require that every offense chargeable from a criminal episode be dismissed for failing to comply with the thirty-day time limit for indictments following an arrest. Rather, 18 U.S.C. Sec. 3162(a)(1) only requires the dismissal of the offense charged in the complaint for a violation of 18 U.S.C. Sec. 3161(b). United States v. Napolitano, 761 F.2d 135, 137-138 (2d Cir.), cert. denied, 474 U.S. 842, 106 S.Ct. 129, 88 L.Ed.2d 106 (1985); United...