Opinion
8:01CR273
June 5, 2002
MEMORANDUM AND ORDER
Before me is the objection of defendant Gary Trawicki (hereafter, Trawicki), Filing No. 127, to the magistrate's report and recommendation, Filing No. 124, in which the magistrate recommends that this court deny Trawicki's motion to suppress physical evidence, Filing No. 81. The indictment charges Trawicki with one count of conspiracy to distribute and possess with intent to distribute methamphetamine and cocaine in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) and (b)(1), and two counts of criminal forfeiture under 21 U.S.C. § 853. Trawicki seeks to suppress evidence obtained in a search of his residence.
Under 28 U.S.C. § 636(b)(1)(C), I make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the parties object. To that end, I have carefully reviewed the record, the transcript of the suppression hearing, the report and recommendation, the defendant's brief, the exhibits, and the relevant case law. Because the report and recommendation presents an accurate summary of the facts adduced at the suppression hearing, a lengthy repetition of the factual background is not necessary in this order. I conclude that the defendant's objections should be overruled and that the report and recommendation of the magistrate should be adopted.
In his objection, Trawicki asserts that the officers did not wait a reasonable amount of time before entering the residence and thus violated the "knock and announce" rule set out in 18 U.S.C. § 3109. That 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.
The statute does not require that a refusal of admittance be affirmative, but rather "encompasses circumstances that constitute constructive or reasonably inferred refusal." United States v. Bonner, 874 F.2d 822, 824 (D.C. Cir. 1989). "The determination of whether an officer was justified in forcing entry after announcing his presence and purpose does not turn on any hard and fast time limit, but depends upon the circumstances confronting the officer serving the warrant." United States v. Lucht, 18 F.3d 541, 549 (8th Cir. 1994). Accord, United States v. Streeter, 907 F.2d 781, 789 (8th Cir. 1990), overruled on other grounds, United States v. Wise, 976 F.2d 393 (8th Cir. 1992).
A reasonable time is ordinarily very brief. United States v. Bonner, 874 F.2d 822, 824 (D.C. Cir. 1989). Officers are permitted to break down the door and enter the residence, if after "knocking and announcing" and waiting a reasonable amount of time, entry is refused. Id. Failure to respond within a reasonable time is tantamount to a refusal. Id.
A search warrant for a drug offense will not, in and of itself, justify a forced entry in executing the warrant. United States v. Lucht, 18 F.3d 541, 548 (8th Cir. 1994). United States v. Moore, 956 F.2d 843, 847 (8th Cir. 1992). A reasonable time must pass from which a constructive refusal of entry may be inferred. Id. A delay of twenty-five seconds after "knocking and announcing" has been upheld as reasonable. Lucht, 18 F.3d at 548. Silence can be construed as access denied and "more often, the officers meet silence as the occupants seek to destroy evidence or escape." Id. (quoting United States v. Ortiz, 445 F.2d 1100, 1102 n. 2 (10th Cir. 1971)).
Agent M. J. Sackett testified that he has been a member of the FBI for more than fourteen years and that for the last two years, he was a leader of the FBI's SWAT Team. Agent Sackett testified that when he approached the house the exterior door was unlocked. He testified that he knocked on the main door, saying aloud, "FBI. Search Warrant. Open the door." Agent Sackett also testified that he knocked and announced twice and waited approximately thirty seconds, although it could have been a few seconds less. He heard nothing while standing at the door. Agent Sackett then ordered FBI Agent Nellis to breach the door using the ram. The door was successfully breached and the defendant was found in the back bedroom.
I conclude that the officers waited an appropriate amount of time and that they were constructively denied admittance to the house. I conclude that "knocking and announcing" for nearly thirty seconds before breaching the door was a reasonable time under the circumstances. See Lucht, 18 F.3d at 548. The officers had reasonable suspicion to be concerned about the destruction of evidence given the nature of the circumstances. Therefore, I agree with the magistrate and find that the execution of the warrant was lawful under the Fourth Amendment.
IT IS ORDERED:
1. The defendant's statement of objection, Filing No. 127, to the magistrate's report and recommendation, Filing No. 124, is overruled;
2. The magistrate's report and recommendation, Filing No. 124, is adopted in its entirety; and
3. The defendant's motion to suppress, Filing No. 81, is denied.