In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2554

United States of America,

Plaintiff-Appellee,

v.

Frederick D. McGee,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois, Rock Island Division.
No. 00-CR-40032--Michael M. Mihm, Judge.

Argued January 9, 2002--Decided February 12, 2002



  Before Flaum, Chief Judge, and Harlington
Wood, Jr., and Easterbrook, Circuit Judges.

  Flaum, Chief Judge. The appellant,
Frederick D. McGee, has filed the instant
appeal contesting the district court’s
denial of his motion to suppress evidence
gained by the government after it
executed a search warrant of his
premises. According to McGee, the
government failed to wait an appropriate
amount of time from the announcement of
its presence outside his home and its
forced entry into his apartment. For the
reasons stated herein, we affirm the
decision of the district court.

I.   BACKGROUND

  In April of 2000, federal agents, acting
on suspicion of McGee’s involvement in
drug trafficking, searched the trash that
McGee had left in the alley behind his
home. In conducting this search, they
discovered indicia of drug trafficking
(i.e., residue of crack cocaine and
plastic baggies). Based upon this
information, they sought and obtained a
warrant to search McGee’s residence.
Federal agents arrived at McGee’s
residence on the morning of April 27,
2000 to execute the warrant.

  McGee’s apartment was located in a
Victorian house that had been divided
into four units. His residence occupied
the first floor of the structure and
could be accessed from both a front and
rear door. Upon arrival at McGee’s
residence, the agents noticed that McGee
was entering through the rear entrance.
The federal agents decided to enter the
structure through the front door. While
the entry team was preparing to enter
McGee’s apartment through the front
entrance of the building, other officers
were positioned outside its rear.

  Shortly after McGee entered the rear of
the residence, the entry team began
banging on the outer door of the
residence and yelling, "FBI, search
warrant." According to the record, from
the moment the federal officers began
banging upon the door, they continuously
yelled "FBI, search warrant." The agents
noticed that the outer door of the
residence was unlocked and then opened
that door and proceeded into a common
foyer that contained a door leading to
McGee’s apartment. While the entry team
was proceeding through the front door,
the agents stationed at the rear of the
residence noticed that, once the
announcement had been made, McGee left
his apartment through the rear door,
glanced at them, and then proceeded up
the rear staircase of his building. The
officers at the rear took McGee into
their custody.

  After hearing no acknowledgment from
inside, the entry team began to break
down the inner door to McGee’s apartment.
The agents had to batter the door several
times before it was successfully
breached. The testimony at the
suppression hearing established that
"approximately ten seconds" after the
knocking had begun on the residence’s
outer door, the entry team began to
forcibly enter McGee’s apartment. After
McGee’s door had been successfully
broken, agents discovered drugs and a
loaded handgun in the headboard of his
bed.

  As a result of the search conducted in
McGee’s apartment, the government
indicted McGee for possession with intent
to distribute at least 50 grams of a
substance containing a cocaine base and
for the unlawful possession of a firearm
by a felon. At his trial, McGee moved to
suppress all evidence gleaned as a result
of the government’s search of his
premises. According to McGee, the
government violated the so-called "knock
and announce" rule when its agents
forcibly entered his apartment just ten
seconds after announcing their presence.
The district court denied McGee’s motion
to suppress and his subsequent motion to
reconsider. McGee then entered a
conditional plea of guilty to Count I of
the indictment and specifically reserved,
in writing, his right to appeal the
district court’s denial of his motion to
suppress.

II.   DISCUSSION

  In examining a district court’s denial
of a motion to suppress, we review its
legal conclusions de novo and its factual
findings for clear error. See United
States v. Brown, 188 F.3d 860, 864 (7th
Cir. 1999).

  The "knock and announce rule" requires
that law enforcement agents, executing a
valid search warrant upon a premises,
wait a reasonable amount of time from
their first knock (or announcement) at
the premises, to their forcibly entry.
See Wilson v. Arkansas, 514 U.S. 927
(1995). In the Wilson case, the Supreme
Court plainly stated that the principles
underlying the common-law "knock and
announce" requirement "form[ ] a part of
the reasonableness requirement under the
Fourth Amendment." Id. at 929. However,
while the Supreme Court has stated that
the "knock and announce" rule must form
part of a court’s Fourth Amendment
inquiry into the reasonableness of a
search, it has also expressly found that
"the Fourth Amendment’s flexible
requirement of reasonableness should not
be read to mandate a rigid rule of
announcement that ignores countervailing
law enforcement interests." Id. at 934.
In particular, the Court noted that the
"knock and announce" rule could give way
"under circumstances presenting a threat
of physical violence," or "where police
officers have reason to believe that
evidence would likely be destroyed if
advance notice were given." Id. Although
most drug investigations arguably involve
at least one (and likely both) of the
above circumstances, the Supreme Court
has not permitted courts to issue a
blanket exception to the "knock and
announce" rule for cases involving drugs.
Richards v. Wisconsin, 520 U.S. 385
(1997). Rather, courts must continue to
engage in a "case-by case evaluation of
the manner in which a search was
executed." Id. at 392.

  In the instant case, after conducting
its hearing, the district court opined
that the ten seconds that elapsed from
the time the government announced its
presence outside of McGee’s apartment to
its breach of McGee’s door did not "seem
like a long time" and that "it’s [not]
reasonable to expect that someone is
going to answer the door in ten seconds."
Nevertheless, the district court refused
to suppress the evidence gained from the
government’s search of McGee’s apartment
because, given the fact that McGee had
exited his apartment from the rear, any
further wait by the entry team would have
been a useless gesture.

  We decline to adopt a rigid time formula
regarding the amount of time officers
must wait prior to their forced entry
into a premises. See United States v.
Espinoza, 256 F.3d 718, 722 (7th Cir.
2001) ("There is no bright-line rule
delineating the boundary between a
reasonable and unreasonable amount of
time for officers to wait after
announcing their presence and before
attempting forcible entry pursuant to a
valid search warrant."). Rather, "in each
case where officers have allegedly not
waited a sufficient amount of time before
attempting forcible entry, the question
must be evaluated on the basis of what
time period is reasonable under the
circumstances." Id.

  The district court found that McGee had
left his apartment once the officers
began knocking upon his front door.
Rather than move towards the door (and
avoid forcible entry), McGee exited the
apartment and began to ascend the stairs
of his building. The government contends
that, in light of McGee’s unavailability
to answer his door, any further wait by
the entry team would have been a useless
gesture. We agree.

  In general, the "useless gesture"
exception to the "knock and announce"
rule is applied when a suspect
affirmatively refuses to answer his door
to allow the government to serve a valid
search warrant. Id. at 720 (exclusionary
rule inapplicable to "knock and announce"
error where defendant held door shut with
his body as officers attempted to enter
his residence). However, this court has
also held that "[t]he phrase ’refused
admittance’ is not restricted to an
affirmative refusal . . ." but also
incorporates "circumstances that infer a
refusal." United States v. Jones, 208
F.3d 603, 609 (7th Cir. 2001). Similarly,
the "useless gesture" exception has been
applied where, as here, a precipitous
entry into a suspect’s residence was
harmless because that suspect was not
home or was not in a position to have
ever answered his door. See, e.g., United
States v. Barnes, 195 F.3d 1027, 1029
(8th Cir. 1999).

  We do not find that the district court
committed clear error in concluding that
McGee had exited his apartment when the
entry team first announced its presence.
Given that McGee was in the process of
ascending the stairs in his building, the
entry team could have waited outside of
his front door for "thirty seconds, or a
minute, or two minutes" to little or no
avail. Espinoza, 256 F.3d at 727.
Therefore, we agree with the district
court’s finding that any further wait by
the entry team would have been useless
and that any precipitous entry by the
government in this case was harmless.

III.   CONCLUSION

  For the foregoing reasons, we Affirm the
decision of the district court.
