UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4448

ROBERT LEE YOUNG, JR., a/k/a Robo,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-97-278)

Submitted: January 27, 1998

Decided: March 10, 1998

Before MICHAEL and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Dale L. DuTremble, Charleston, South Carolina, for Appellant. J.
Rene Josey, United States Attorney, Brucie H. Hendricks, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Robert Lee Young, Jr., pled guilty to being a felon in possession
of a firearm in violation of 18 U.S.C.A. §§ 922(g)(1) and 924(e)
(West 1994 & Supp. 1997). He was found to be an armed career
offender and was sentenced to 216 months imprisonment. His guilty
plea was conditioned on the disposition of a motion to suppress the
evidence, and he now appeals the district court's denial of that
motion. Finding no error, we affirm.

In the early months of 1996, the Tri-county Narcotics Task Force
learned from an informant that Young was selling drugs from his
home and that he was armed and dangerous. Attempts by undercover
officers to purchase drugs from Young were unsuccessful.

In September 1996, agents of the Task Force successfully pur-
chased drugs from Young by using a confidential informant provided
by the Drug Enforcement Administration. The informant and his vehi-
cle were searched and the informant was wired and given forty dollars
in government funds to make a drug purchase. The agents then main-
tained visual and audio surveillance of the informant. As planned, the
informant drove to a neighborhood store in search of a particular con-
tact who would introduce him to Young and vouch for him so that the
informant could make the drug purchase. The informant could not
locate the contact, but found another individual, Michael Williams,
who knew Young and agreed to accompany the informant to Young's
residence.

The informant and Williams drove in the informant's vehicle to
Young's home. Visual surveillance into the home was impossible and
the audio transmission was of poor quality due to a loud television
that was on inside the home. After the alleged transaction and still
under visual surveillance, the informant and Williams left the house,
and the informant dropped Williams off at the store where he had
originally been picked up. Williams was never searched or otherwise
controlled by law enforcement officers. The informant returned to the
Task Force office where he was debriefed and searched. The infor-
mant did not have the forty dollars, but he did have nine rocks of

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crack cocaine. The informant also wrote a statement averring that he
had purchased crack cocaine from Young.

Later that same evening, law enforcement officers approached a
state magistrate seeking a search warrant for Young's residence. In
addition to the affidavit, the magistrate relied on his understanding
that the informant was related to the DEA and that the law enforce-
ment officers were experienced and could identify crack cocaine. The
warrant was issued before midnight and executed at approximately
1:00 a.m. that morning.

When the officers arrived at Young's residence, they knocked and
announced "Sheriff's Department, Sheriff's Department." After two
to three seconds without any response, the officers forcefully entered
the residence where they found Young hiding in his bedroom closet
covered with a blanket. The officers recovered from the home a gun
from the bed in the room where Young was hiding, a pistol, drug par-
aphernalia, drug residue, a notebook with names and addresses, a
police scanner, ammunition, and $225 in cash. The marked forty dol-
lars used by the informant was not found in Young's home.

Young was arrested and charged with violating 18 U.S.C.
§§ 922(g)(1) and 924(e). A federal magistrate judge found probable
cause to believe that Young committed the firearms violation and
denied Young's motion to suppress the evidence. The district court
affirmed the magistrate judge's recommendation. Young then entered
a conditional guilty plea, reserving the right to appeal the denial of the
suppression motion. He timely filed a notice of appeal from the denial
of the suppression motion.

A district court's determination of probable cause under the Fourth
Amendment is an issue of law that this Court reviews de novo. See
United States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996). Young
first argues that the search warrant did not contain probable cause
because it lacked sufficient information about the reliability of the
informant. He contends that the officers presented the magistrate with
a "bare bones" affidavit, that he received no sworn, oral statement to
supplement the affidavit, and that the magistrate merely acted as a
rubber stamp in approving the affidavit and issuing the warrant.

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An affidavit supporting a warrant must set forth particular facts and
circumstances underlying the existence of probable cause, so as to
allow the magistrate to make an independent evaluation of the matter.
See Franks v. Delaware, 438 U.S. 154, 165 (1978). In reviewing a
magistrate's probable cause determination, a court must accord great
deference to the magistrate's assessment of the facts. See United
States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992) (citations omit-
ted). The magistrate need only make a "common sense determination
of whether `there is a fair probability that contraband or evidence of
a crime will be found in a particular place.'" Id. (quoting Illinois v.
Gates, 462 U.S. 213, 238 (1983)). The probable cause standard "does
not demand showing that such a belief be correct or more likely true
than false." Id. (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)).
Finally, "[b]ecause of the fourth amendment's strong preference for
searches conducted pursuant to warrants, reviewing courts must resist
the temptation to `invalidate warrant[s] by interpreting affidavit[s] in
a hypertechnical, rather than a common sense, manner.'" United
States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990) (quoting
Illinois v. Gates, 462 U.S. 213, 236 (1983)) (other citations omitted).

Here, the probable cause affidavit stated that the informant was
working under the supervision of an area drug task force, and the offi-
cers informed the magistrate that the informant was supplied by the
Drug Enforcement Administration. Further, the warrant provided that
the informant had made a "control purchase of a white rock substance
believed to be crack cocaine" from Young at Young's home at the
behest of the officers. We find that the district court properly con-
cluded that the affidavit was sufficient to establish probable cause,
and that the magistrate could have concluded from statements in the
affidavit that the informant was honest and reliable. See Gates, 462
U.S. at 238.

Young next argues that the warrant was invalid because it con-
tained material omissions of fact that were knowingly and recklessly
withheld from the magistrate. Specifically, he points to the descrip-
tion in the affidavit of a "control purchase." Young contends that this
description is inaccurate because of the presence of the "unknown,
unsearched, uncontrolled third party," Williams, who was permitted
to be present at the alleged drug transaction. The law enforcement
officers who sought the warrant did not inform the magistrate of Wil-

                    4
liams's participation. Young also points to the informant's criminal
history, which the officers did not relay to the magistrate, and the
magistrate's mistaken belief that the informant was somehow tied to
law enforcement or was a police officer. Finally, Young asserts that
the officers should have told the magistrate that the transaction may
in fact have occurred at the convenience store where the informant
picked up Williams, and not in Young's home.

To challenge the validity of a facially valid warrant, Young must
establish by a preponderance of the evidence that the officers engaged
in a "deliberate falsehood or [ ] reckless disregard for the truth, and
those allegations must be accompanied by an offer of proof." Franks,
438 U.S. at 171. Allegations of negligence or innocent mistake, how-
ever, are insufficient to attack the validity of the affidavit. See id. In
addition, there is a presumption of validity with respect to the affida-
vit supporting a search warrant. See id. The district court's finding
that the statements were not deliberately false or in reckless disregard
for the truth is reviewed under the clearly erroneous standard. See
United States v. Jones, 913 F.2d 174, 176 (4th Cir. 1990).

As the district court properly found, Young presented no evidence
establishing that the omission constituted a deliberate falsehood or
that the officers had a reckless disregard for the truth. The record does
not reflect that the officers intentionally omitted the information about
Williams's participation and the degree of control that the officers
exercised over the transaction. There is also no support in law for
Young's contention that the officers were required to describe the
informant's criminal history to the magistrate.

Next, the magistrate's belief that the informant was a police officer
or tied to law enforcement is not totally incorrect--even though the
informant was not a police officer, the DEA did supply the informant
to the local police. Furthermore, the magistrate testified that the offi-
cers were acting in good faith when they sought the search warrant,
and that if the same scenario was presented to him again, he would
still issue the warrant. Finally, Young's assertions that the officers
should have told the magistrate that the drug transaction could not be
confirmed by the audio tape, and that the drug transaction may have
occurred at the convenience store instead of Young's home, are also
meritless. Based on the information deduced from the tape recording,

                     5
in addition to the informant's statement that the transaction occurred
in Young's home, we find that it was reasonable for the police offi-
cers to believe a drug transaction occurred, and that it occurred in
Young's home. Furthermore, if the officers believed the transaction
occurred at Young's home, there is no reason why they would tell the
magistrate that they believed it occurred at the convenience store.
Indeed, if the informant had purchased drugs from Williams at the
convenience store, he would have had no reason to go to Young's
house. Accordingly, the district court's finding that the officers did
not engage in a deliberate falsehood or reckless disregard for the truth
is not clearly erroneous.

Young's final claim is that the search was unreasonable because
the officers violated the knock and announce rule of 18 U.S.C. § 3109
(1994). Specifically, he alleges that the officers did not wait long
enough for a response before using force to enter Young's home after
announcing their presence. One element of the reasonableness inquiry
governing the lawfulness of searches under the Fourth Amendment is
that police officers must knock and announce their presence before
entering the premises to be searched. See Wilson v. Arkansas, 514
U.S. 927, 934 (1995). However, the principle is not a rigid rule and
allows for unannounced entry when there are important countervail-
ing law enforcement interests such as the safety of the officers or pre-
vention of the destruction of evidence. See id. at 936.

There is no law regarding how much time must elapse before law
enforcement officers may use force to enter a dwelling after announc-
ing their presence. In this instance, there was testimony that the offi-
cers only waited a few seconds before using force to enter Young's
home. However, the officers had reason to believe that both drugs and
weapons would be found in Young's residence. Nine rocks of crack
cocaine had been purchased from Young inside his home earlier that
day. Also, seven months earlier, the police officers had received
information from an informant that advised that"a large amount of
guns [had] been observed inside [Young's] residence and that [Young
had] guns next to his side at most times during visits to the resi-
dence." Furthermore, this Circuit has found that"it is not unreason-
able to recognize that weapons have become `tools of the trade' in
illegal narcotics operations." United States v. Nelson, 6 F.3d 1049,
1056 (4th Cir. 1993) (citations omitted). In this case, execution of the

                    6
search warrant occurred late at night, drugs had been purchased from
the residence earlier that same day, and there was some indication that
Young was armed. Thus, we find that the entry was reasonable.

Accordingly, we affirm the district court's denial of Young's
motion to suppress. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.

AFFIRMED

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