                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 _____________

                                 No. 99-2316NE
                                 _____________

United States of America,               *
                                        *
            Appellee,                   *
                                        * On Appeal from the United
      v.                                * States District Court
                                        * for the District
                                        * of Nebraska.
David J. Barnes,                        *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: November 15, 1999
                                 Filed: November 23, 1999
                                  ___________

Before RICHARD S. ARNOLD, JOHN R. GIBSON, and BEAM, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.


       David Barnes was convicted of conspiracy to distribute, and to possess with
intent to distribute, methamphetamine, in violation of 21 U.S.C. § 846. The District
Court1 sentenced him to 135 months (eleven years and three months) in prison, and he
appeals. Mr. Barnes raises three arguments, which we address in turn.



      1
      The Hon. Joseph F. Bataillon, United States District Judge for the District of
Nebraska.
       1.      First, it is said that certain physical evidence seized from the defendant's
apartment ought to have been suppressed. We disagree. In our view, the warrant that
authorized the search was supported by probable cause. Officers had been told by one
Patrick Reynolds that he, Reynolds, had seen large quantities of methamphetamine in
Barnes's apartment three nights before, and that, earlier on the day the warrant was
executed, Reynolds had seen Barnes in possession of methamphetamine, and Barnes
had told Reynolds that he was making rounds to deliver the drug to buyers. Reynolds,
the informant, identified a photograph of Barnes, pointed out his automobile, and also
pointed out the apartment building, though he did not know the number of the
apartment. Information about the automobile and the apartment was corroborated.
Barnes argues that Reynolds should be classified as a police informant, rather than a
citizen informant, and this may be true, but the issue of probable cause, which we
review de novo, has to be assessed in light of all the relevant facts, see Illinois v. Gates,
462 U.S. 213 (1983). Here, the informant had first-hand knowledge of the facts, and
the affidavit for the warrant made clear that he had been arrested on a drug charge, and
was, therefore, not a citizen informant as that term is normally used. We have no
hesitation in holding that probable cause supported the application for the warrant.

       2.     The warrant authorized entry into Barnes's apartment without knocking,
and the officers availed themselves of this privilege when they executed the warrant.
Certainly it is true, as Barnes argues, that the "knock and announce principle is an
element of the reasonableness inquiry under the Fourth Amendment." See Wilson v.
Arkansas, 514 U.S. 927, 934 (1995). Here, no particularized facts, beyond the mere
circumstance that drugs were to be searched for, were alleged in the affidavit in support
of the no-knock authority. But even if, as Barnes argues, the no-knock aspect of the
warrant was invalid, we do not see what difference this made. As it happened, nobody
was in the apartment at the time, anyway, so knocking would have made no difference.
The knock would not have been answered, and the officers would then have entered.




                                            -2-
       3.    Defendant argues that certain statements made by him to police while he
was in custody should have been suppressed. The statements were made after Barnes
had invoked his right to counsel. We hold that the statements were properly admitted,
because there was no interrogation in the relevant sense of that term. The officer did
no more than tell Barnes that he was going to be booked for possession of a firearm.
Barnes responded that he "didn't think so," and the officer then asked him what he
meant. Barnes replied that it was not illegal for him to have a gun while he was a
convicted felon, and the officer told him that he was wrong. Barnes's statements were
spontaneous, and the officer's remark to Barnes that he was going to be charged with
possession of a firearm was a statement of fact, not the functional equivalent of
interrogation.

      Each of these contentions was thoroughly considered by the District Court,
which acted after considering a comprehensive report and recommendation by a
magistrate judge.2 We find no error in the actions of the District Court, and the
judgment is therefore

      Affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
      The Hon. Thomas D. Thalken, United States Magistrate Judge for the District
of Nebraska.

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