United States v. Sargent, Crim. No. 01-14-B-S (D. Me. 4/30/2001)

• Decision Date: 30 April 2001
• Docket Number: Crim. No. 01-14-B-S.
• Parties: UNITED STATES OF AMERICA, v. ROSCOE B. SARGENT, Defendant.
• Court: U.S. District Court — District of Maine

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UNITED STATES OF AMERICA, v. ROSCOE B. SARGENT, Defendant.

Crim. No. 01-14-B-S.

United States District Court, D. Maine.

April 30, 2001.

BRETT D. BABER, BABER & WEEKS, for defendant.

TIMOTHY D. WING, AUSA, U.S. ATTORNEY'S OFFICE.

RECOMMENDED DECISION

MARGARET J. KRAVCHUK, Magistrate Judge.

Defendant Roscoe B. Sargent has filed a Motion to Suppress (Docket No. 4) seeking suppression of certain items of physical evidence seized from his residence pursuant to a state search warrant. An evidentiary hearing was held before me on April 25, 2001. I now recommend that the Court DENY the motion.

PROPOSED FINDINGS OF FACT

The sole issue raised by this motion relates to the reasonableness of the entry by police pursuant to the state search warrant. The warrant was issued by a judge of the Maine District Court on December 29, 2000, and authorized a daytime search of defendant's residence. The affiant did not seek nor did the judge specifically authorize a so-called "no-knock" execution of the warrant. The evidence at the hearing was undisputed that the officers executing the warrant knocked on the door, announced themselves to be Bangor police officers armed with a search warrant, and proceeded to make a forced entry into the apartment after approximately five seconds. Defendant contends that the entry was the functional equivalent of a "no-knock" entry and was not reasonable.

Officer Gregg Sproul has been employed by the Bangor Police Department for twenty years. For approximately the last six years he has worked with the Bangor Police Department's Tactical Team as a "shield man," whose duties include making entry into apartments or other locations for purposes such as executing search warrants and subduing barricaded subjects. On December 29, 2000, at approximately 7:30 p.m., he and the other ten members of the Tactical Team were called to the Bangor police station to attend a briefing prior to the execution of the search warrant at 52 Market Street in Bangor.

The briefing was conducted by Special Agent Andrew Miller of the Maine Drug Enforcement Agency ("MDEA"). Miller informed the Tactical Team that the warrant was a daytime warrant and had to be executed prior to 9:00 p.m. He also advised the officers of the provision relating to "knock and announce" prior to making entry. He advised the Tactical Team that Roscoe Sargent, the presumed occupant of the apartment, was believed to be in possession of a large number of knives intended for use as weapons. According to the information supplied by Miller, Sargent always had a knife within arm reach and could present potential safety issues.

Special Agent Miller testified that he did not request a "no-knock" warrant from the District Court Judge because of time constraints. The warrant was issued late in the evening because the probable cause had only arisen a few hours prior to the issuance and the search had to be commenced prior to 9:00 p.m. that day. He had no other explanation as to why the safety concerns were not brought to the attention of the issuing magistrate.

Officer Sproul was the officer in charge of making the actual initial entry into the building. He was fully informed about the extent of his authorization under the warrant and he was also cognizant of the safety concerns raised by Miller. Sproul made the decision regarding when to enter into the apartment. He knocked loudly on the door, announced that he was a Bangor Police Officer armed with a search warrant, and then, after no more than five seconds had elapsed, he motioned to another officer to make the entry and secure the premises. The door was breached with a battering ram device.

Both Roscoe Sargent and his girlfriend, Heather Fliegelman, agree with Sproul's version of events. They clearly heard him knock and announce that the officers were present and had a search warrant. Sargent says that when they knocked he hollered, "I'm opening the door," and proceeded to walk the short distance from the chair in which he had been sitting to the door, but before he could open the door it was knocked open by the police. Sproul did not hear Sargent's verbal response, but did corroborate that Sargent's position upon the police's entry into the apartment was consistent with his version of events, i.e., he was right by the door and could indeed have been in the act of opening it when entry was made.

One disputed fact did arise during the course of the evidentiary hearing and that related to a statement allegedly made by Special Agent Miller after the door had been breached. According to Sargent and Fliegelman, they asked Miller why forced entry had been made and he replied, "We need to have our fun." Miller denies making any such statement. I conclude that this factual dispute is irrelevant because Miller was not the person who actually made the entry. Moreover, he had nothing to do with Sproul's decision as to when entry should be made. Miller works with MDEA, not the Bangor Police Department, and had no supervisory authority over Sproul nor any decision making role in how the initial entry would be accomplished. Of course, the officer's actual belief about safety concerns would be a relevant factor for this court to consider in assessing the reasonableness of the entry, but this alleged statement by Miller does not shed light on the thought process of Sproul or the Tactical Team at the time of entry.

I find from the evidence presented that at the time Sproul made the decision to actually enter the apartment after approximately five seconds he did so because he had genuine safety concerns and because he believed that enough time had elapsed to alert the occupants to his presence. He candidly admitted that the time period was very brief, but he also indicated that safety concerns were paramount. Indeed, the evidence is undisputed that the chair in which the defendant had been sitting had a knife stuck in the arm, available for use as a weapon. Officer Sproul's safety concerns were not fanciful, but rather were supported by the evidence.

Discussion

When a court is called upon to determine the reasonableness of a search of a dwelling pursuant to the Fourth Amendment, a part of the reasonableness inquiry involves the application of the common-law principle of "knock and announce." Wilson v. Arkansas, 514 U.S. 927, 929 (1995). Pursuant to this principle, a law enforcement officer has the authority to break open the doors of a dwelling, but he first ought to announce his presence and authority. Id. However, this requirement is flexible and legitimate law enforcement concerns over, inter alia, safety and the destruction of evidence justify dispensing with the announcement. Id. at 936.

The Government takes the position that the officers complied with the "knock and announce" principle in this case. The defendant, on the other hand, argues that for all realistic purposes it was in fact an unannounced forced entry. See State v. George, 1997 ME 2, ¶¶ 7 & 9, 687 A.2d 958, 959, 960 (finding that a brief announcement followed by the use of a...