                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-4708
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                 v.

KEITH COLLINS,
                                              Defendant-Appellant.

Nos. 06-2746, 06-3741
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                                    Cross-Appellant
                                 v.


GREGORY MCNEAL,
                                              Defendant-Appellant/
                                                   Cross-Appellee.
                         ____________
           Appeals from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 03 CR 80—Matthew F. Kennelly, Judge.
                         ____________
  ARGUED NOVEMBER 7, 2007—DECIDED DECEMBER 14, 2007
                         ____________
2                                              No. 05-4708

    Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
  POSNER, Circuit Judge. A jury convicted the defendants of
federal drug offenses, and the judge sentenced Collins to
144 months in prison and McNeal to 240 months. The
defendants appeal, and the government cross-appeals
with regard to McNeal, arguing that his sentence, though
very long, is not long enough.
  Concerning Collins’s appeal, we can be brief. Apart from
a perfunctory and indeed frivolous attack on the suffi-
ciency of the evidence, Collins’s lawyer, M. Engin Derkunt
of the Texas Bar, devotes his entire brief to arguing that
Title 18—the federal criminal code—is unconstitutional
because of supposed irregularities in its enactment. We
recently described an appeal in which Derkunt made the
same argument on behalf of another client as “unbelievably
frivolous.” United States v. States, No. 06-2345, 2007 WL
2768906 (7th Cir. Sept. 24, 2007) (per curiam). We affirm
the judgment against his current client, without prej-
udice to the client’s seeking post-conviction relief on the
ground of ineffective assistance of counsel, and we order
Derkunt to show cause why he should not be sanctioned
for professional misconduct in this court. We are also
sending a copy of this opinion to the Texas bar disciplinary
authorities. His quixotic crusade—“Title 18: The U.S.
Criminal Code—Void ab initio,” www.nocriminalcode.us
(visited Nov. 7, 2007)—is a profound disservice to his
clients.
  We turn to McNeal’s appeal and the government’s cross-
appeal. The Drug Enforcement Administration and the
Chicago police had strong grounds for suspecting that
McNeal was selling cocaine from his house. A team of
DEA officers and uniformed police officers approached
the house, carrying a battering ram. They knocked on the
No. 05-4708                                                 3

front door and heard movement within and a voice say
“the police are at the door.” They waited at least 20 seconds
after knocking, then broke down the door with their
battering ram, handcuffed McNeal, searched the house,
and found drugs that were then introduced in evidence
against McNeal at his trial. He argues that the evidence
should have been suppressed (and that therefore he is
entitled to a new trial) because the officers had no ex-
cuse for failing to get a warrant, which they could have
done, within minutes, by applying by telephone or email.
See Fed. R. Crim. P. 41(d)(3)(A).
  Police may not search a person’s home without a war-
rant unless there is an emergency, Welsh v. Wisconsin, 466
U.S. 740, 748-50 (1984); Payton v. New York, 445 U.S. 573
(1980); Michigan v. Tyler, 436 U.S. 499, 509 (1978); Hadley v.
Williams, 368 F.3d 747, 750 (7th Cir. 2004)—what in legal
jargon, because our profession disdains plain speech, are
called “exigent circumstances.” The district judge ruled
that the officers reasonably believed that there was an
emergency—that McNeal or his accomplices were about
to destroy evidence. The judge thought it significant that
the officers heard not only movement within the house,
but the sound of “running feet,” and the government
repeats this in its brief—which it should not have done,
for there is no evidence that the officers heard the sound
of running feet. (In a post-argument submission, the
government acknowledged the mistake.) So we are left
with a group of people appearing at McNeal’s door, sev-
eral in police uniform, and a person in the house observ-
ing unsurprisingly that “the police are at the door,”
together with a sound of movement, not further defined—
unless someone was standing right inside the door
when the police knocked, there would have had to be
movement within before the door could be opened.
4                                                 No. 05-4708

  No doubt at some point, knowing there were people in
the house, knowing it was a drug house, the officers
would be reasonable in inferring from the failure to answer
the door that the persons inside were busy destroying
evidence, or perhaps even arming themselves to resist
entry by the police violently. United States v. Robles, 37
F.3d 1260, 1263-64 (7th Cir. 1994); United States v. MacDon-
ald, 916 F.2d 766, 770-71 (2d Cir. 1990) (en banc). The
Supreme Court has suggested that the police need not
hold off for more than 15 or 20 seconds. United States v.
Banks, 540 U.S. 31, 37-38 and n. 5 (2003). Maybe 10 seconds
are enough. United States v. Cline, 349 F.3d 1276, 1288-90
(10th Cir. 2003). Maybe less, as in United States v. Markling,
7 F.3d 1309, 1318 (7th Cir. 1993) (7 seconds), where the
knock was on the door of a small room in a motel, or
United States v. Crippen, 371 F.3d 842, 843-44 (D.C. Cir. 2004)
(4 seconds), where the police were afraid that the occupant
had a rocket launcher; if a launcher were fired at an officer
“standing in the doorway . . . [the rocket] would go straight
through [him].”
  But the government contended forcefully at argument
in our case that no interval between knocking on the door
and breaking in with a battering ram is ever required—not
a second. It is enough if the officers have a strong reason
to believe that illegal drugs are in the house, because there
is always a danger that as soon as drug dealers realize
that the police are at the door they will start destroying
evidence. Again, the government retracted this extreme
position in its post-argument submission. And rightly
so, for, if accepted, it would effectively nullify any re-
quirement of a warrant to search a house. All the police
would need would be probable cause to believe that the
house was occupied and contained contraband or evidence
No. 05-4708                                                   5

of crime. The Supreme Court’s rule that a warrant is
required for the search of a home unless there is an emer-
gency would be eviscerated, along with the requirement
of knocking before entering (again, unless there is an
emergency). Richards v. Wisconsin, 520 U.S. 385, 394 (1997).
For there is no purpose in knocking if the occupant isn’t
given a chance to answer the door.
  The exception for emergencies is important. Suppose that
a patrolling police officer hears blood-curdling screams
coming from a house. He runs to the door and tries to
open it, but it is locked, so he barges in. He could not
have waited till he could get a warrant, even if that would
have taken only a few minutes. Nor would he have to
knock before entering. Leaf v. Shelnutt, 400 F.3d 1070, 1083-
85 (7th Cir. 2005); United States v. Hardy, 52 F.3d 147, 149-50,
n. 3 (7th Cir. 1995). But an emergency cannot be presumed
in every case in which police barge into a person’s home
unannounced. The government has presented no evidence
that, like mink devouring their young when they hear a
loud noise, criminals always (or at least in the vast majority
of cases) set about to destroy evidence whenever the police
knock on the door. Doubtless it is a common reaction, but
how common we are not told.
  Many cases say that law-enforcement officers cannot be
allowed to manufacture an emergency and then use the
emergency to justify dispensing with the procedures
ordinarily required to search a home. United States v.
Napue, 834 F.2d 1311, 1327 n. 17 (7th Cir. 1987); United
States v. Coles, 437 F.3d 361, 368-70 (3d Cir. 2006); United
States v. Chambers, 395 F.3d 563, 566 (6th Cir. 2005); United
States v. Richard, 994 F.2d 244, 248 (5th Cir. 1993). But the
“manufacturing” metaphor is misleading. It is true that in
the present case, in contrast to our hypothetical case of
6                                              No. 05-4708

screams from within, the officers had time to obtain a
warrant and no reason to think before they arrived at
McNeal’s door that anyone inside the house knew the
police were approaching. They had time at least to initiate
the process of obtaining a warrant by phone or email, and
if something happened before the warrant was issued
to create a grave concern about the possible destruction
of evidence they could have moved in at once. But nothing
happened; and it is the fact that nothing happened, rather
than the “manufacture of exigent circumstances,” that
undermines the government’s position.
  For there is a sense in which any time police knock and
announce their presence and the occupants respond in
a suspicious manner (such as the “running feet” not
heard in this case), the police can be regarded as the
“manufacturers” of the emergency that then justifies their
barging in and searching the house and arresting the
occupants. That would not justify suppression of the
evidence found in the search. United States v. MacDonald,
supra, 916 F.2d at 771. The conduct of the police would
be a “but for” cause (that is, a necessary condition) of the
emergency but it would not be culpable. They would be
doing nothing wrong, because there is no legal requirement
of obtaining a warrant to knock on someone’s door. For
that matter there is nothing to forbid the police to lug
the battering ram with them in open view, anticipating
the worst. But the risk they take in proceeding in such
a fashion is that the emergency will not materialize—
that the occupant of the house will calmly open the
door and ask to see their warrant—that there will be no
sound of “running feet,” or other sounds or sights sig-
nifying that evidence is about to be destroyed. The further
risk is that no one will answer the knock and the govern-
No. 05-4708                                               7

ment will be unable to prove that the police knew the
house was occupied.
  The government argues that the police waited 30 or even
45 seconds before breaking down McNeal’s door. The
judge, however, as the government fails to acknowledge,
found only that it was more than 20 seconds. (The govern-
ment continues to insist that it was at least 30 seconds.)
Even 20 seconds may be a long time to answer a knock on
the door by the police when someone is heard within
acknowledging that the police are at the door. But the
government does not argue that a 20-second interval is
long enough to justify entering the house forcibly. They
do not argue for a 30-second or a 20-second or a 15-second
rule, though the case law we cited might well be thought
to justify such a rule when there is probable cause to
believe that a house contains drugs and occupants. The
government in its brief argues that merely knowing that
there are drugs in a house creates an emergency that
justifies dispensing with a warrant. In its post-argument
submission the government softens its position by argu-
ing (belatedly) for the first time that the words “the
police are here” that they heard was a “yell” which they
“could reasonably interpret . . . as a warning” to other
occupants of the house to destroy the drugs. The dis-
trict judge did not find that the police had heard a “yell”
or that what they did hear could be interpreted as a
warning.
  In short, if police hear a crime being committed within
a house (and spoliation of evidence is a crime), then
they can enter immediately, without knocking; if they do
not hear a crime (more precisely, if they do not have
probable cause to believe a crime is in progress), they have
to get a warrant. The government has failed to show that
8                                                No. 05-4708

in this case the police had probable cause to believe that
evidence was being, or was about to be, destroyed when
they entered.
  The government has a backup position. When the officers
handcuffed McNeal, they asked him for consent to
search the house and he gave it. He argues that his con-
sent was given involuntarily, that it was a product of
intimidating circumstances. The government ripostes that
since he had been “caught red-handed” he “had a
choice—and at that instant, he decided to try to help
himself by cooperating with the investigation,” and thus
his consent was voluntary. That misses the point. He was
“caught red-handed” only because the police had barged
in and were searching the house. The jig was up. But it was
up because of the officers’ unlawful act, and they cannot
use their unlawful act as the basis for an inference of
consent, United States v. Robeles-Ortega, 348 F.3d 679, 683-85
(7th Cir. 2003); United States v. Jones, 214 F.3d 836, 838-39
(7th Cir. 2000); United States v. Snype, 441 F.3d 119, 132-33
(2d Cir. 2006), just as a robber cannot defend by reference
to the eagerness with which his victim chose to surrender
his money rather than his life. Suppose the police had
accosted McNeal on the street and asked him for consent
to search his home. It is doubtful that he would have
given it, and the government does not bother even to
argue that he would have. He consented to the choice at
a time when he had no real choice, and he had no real
choice because of police misconduct.
  So the evidence of the drugs found in the house should
have been suppressed, and so McNeal’s conviction and
sentence must be vacated. But should he again be con-
victed, we point out that the government is correct to
argue on cross-appeal that the district judge was mistaken
No. 05-4708                                                 9

to think that the imposition of a mandatory minimum
sentence cannot be based on a finding of drug quantity
by the district judge. It can be. Harris v. United States,
536 U.S. 545 (2002); United States v. Knight, 342 F.3d 697,
713-14 (7th Cir. 2003). The district court may have
thought that the ubiquitous Booker decision (United States
v. Booker, 543 U.S. 220 (2005)), in expanding the sentencing
discretion of the district judges, abrogated the rule of
Harris, but we have held that it did not. Wilson v. United
States, 414 F.3d 829, 831-32 (7th Cir. 2005); United States v.
Duncan, 413 F.3d 680, 683-84 (7th Cir. 2005).
  The judgment in Collins’s case is affirmed, in McNeal’s
case reversed, and McNeal’s case is remanded for fur-
ther proceedings consistent with this opinion.

A true Copy:
       Teste:

                          _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                   USCA-02-C-0072—12-14-07
