              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 01-41014
                            c/w 02-40231
                       _____________________

UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellant,

                                   versus

JOSE TRINIDAD VALDEZ, III, also known as Trinito;
SAN JUANITA ALVAREZ VALDEZ,

                                                Defendants - Appellees.

_________________________________________________________________

          Appeals from the United States District Court
                for the Southern District of Texas



                             August 12, 2002

 Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

PER CURIAM:

     The United States appeals from orders entered by the district

court   granting   motions    to   suppress    filed   by    each   of   the

defendants/appellees   on    the   grounds    that   the    state   officers

executing a search warrant as to a private residence failed to

comply with the “knock and announce” common law rule.

     After considering the record, briefs, and oral argument in

this case, it is clear to us that the district judge conducted an

extensive hearing, that he carefully considered all of the facts
and circumstances associated with this arrest, and that none of his

factual findings is clearly erroneous. Given his factual findings,

we hold that the district judge did not abuse his discretion in

suppressing the evidence.      In upholding the district court’s

ruling, we emphasize that this case is close, which all the more

requires us to abide by the findings of the factfinder here, who

clearly had a firm grasp of this case.   We attach as an addendum to

this opinion the order of the district court suppressing the

evidence.     The judgments and rulings of the district court are

accordingly

                                                          AFFIRMED.
                  IN THE UNITED STATES DISTRICT COURT

                   FOR THE SOUTHERN DISTRICT OF TEXAS

                          CORPUS CHRISTI DIVISION



UNITED STATES OF AMERICA,             §

                                      §

v.                                    §   CRIMINAL NO. C-01-59

                                      §

JOSE TRINIDAD VALDEZ,                 §




            ORDER GRANTING DEFENDANT’S MOTION TO SUPPRESS

     On    May   24,   2000,   Criselda   Pendleton   of   the   South   Texas

Specialized Crimes and Narcotics Task Force petitioned for a search

and arrest warrant subsequently issued Judge Chiuminatto.*                The

same day at approximately 10:00 p.m. the warrants were executed at

Defendant’s residence located on East Richard Street in Kingsville,

Texas.**

     Officer Pendleton, the case agent, tasked a five person entry

team with execution of the warrant. In preparation for execution,

the entry team dressed in ski masks, black “battle dress uniforms,”



     *
      Defendant does not challenge the validity of the warrant but
instead the manner by which it was executed.
     **
      The officers testified that Defendant’s neighborhood was
notorious for narcotic activity and that neighboring homes were
occupied by Defendant’s relatives.
and combat boots.   As the van carrying the entry team traveled East

bound on Richard street, a car with five male youths traveling West

bound on Richard street turned into the driveway of Defendant.          The

entry team van followed the car into the driveway and parked.           The

team exited the van, rushed toward the door of the house, yelled to

the five youths “get down, police,” and lined up single-file at

Defendant’s door.       Officer McCoy, the first team member in the

line, knocked on the door with his hand and immediately kicked the

door twice intending to open the door.        The second kick caused the

door to open.    The warrant was executed resulting in the arrest of

Defendant and seizure of approximately 75 grams of cocaine.

     Defendant    was    indicted   in   a   two   count   indictment   for

possession with intent to distribute a controlled substance in

violation of 21 U.S.C. 846, 841(a)(1) and 841 (b)(1)(C).          On June

15, 2001, Defendant filed the instant motion to suppress evidence.

On June 28, 2001, the Court heard evidence as to Defendant’s

motion, and ordered further briefing as to Defendant’s motion. The

Defendant filed a brief; the United States did not.

     The common-law knock-and-announce rule that binds state police

officers requires a wait in between the knock and any forced entry.

See United States v. Jones, 133 F.3d 358, 361 (5th Cir. 1998).

Because there was no wait in between the knock and the forced entry

(much less a five second wait), the officers clearly violated the

knock-and-announce rule by such failure.           “Generally, a delay of

five-seconds or less after knocking and announcing has been held a
violation of 18 U.S.C. § 3109.”      Id. (the Court in Jones noted that

§ 3109 cases are informative for purposes of common-law knock-and-

announce rule analysis).

     The government failed to provide a convincing case that

pausing some 10 to 20 seconds was not reasonable.           The failure to

wait was not mitigated by any exigent circumstance.            In order to

justify the entry, the police must have a reasonable suspicion that

knocking and announcing, under the particular circumstances, would

be dangerous and futile, or that it would inhibit the effective

investigation    of    the   crime   by,   for   example,   allowing    the

destruction of evidence. See United States v. Cantu, 230 F.3d 148,

152 (5th Cir. 2000).

     No exigent circumstance existed inside the Defendant’s home.

There was no testimony at the suppression hearing that officers had

any reason to believe that there were weapons in Defendant’s home,

or that armed and dangerous people were known or even rumored to be

present there.   No weapons were seized in the raid of Defendant’s

home.    There was no testimony that any officer heard movements

inside   Defendant’s    home   suggesting    that   evidence    was    being

destroyed.

     Ms. Pendleton justified the entry of her team’s on the grounds

that Defendant was a known drug dealer and that known drug dealers

are prone to certain violent behavior. Such justification has been

clearly rejected by the Fifth Circuit Court of Appeals.           See e.g.

United States v. Cantu, 230 F.3d 148, 152 (5th Cir. 2000) (citing
Richards v. Wisconsin, 520 U.S. 385, 394 (1997)).

     No exigent circumstance existed outside Defendant’s home.         At

the suppression hearing, the officers asserted that they chose not

to wait for purposes of ensuring their safety. Many of Defendant’s

relatives   lived   near   him   (unidentified   as   to   number,   name,

residence, and/or complicity).      Seven unknown individuals were in

the yard outside of Defendant’s house.      While expressing a desire

for the cover of being inside Defendant’s house, the presence of

the two individuals under a tree in Defendant’s yard, and the

presence of the car load of youths in the driveway having been

ordered to the ground without more is no evidence of danger to

anyone especially since an additional 10 or more officers were on

the scene or were immediately arriving.

     The Court grants Defendant’s Motion to Suppress.



            ORDERED this _____ day of ______________________________,

            2001.

                                  _________________________________

                                  H.W. HEAD, JR.

                                  UNITED STATES DISTRICT JUDGE
