                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

      Argued September 6, 2001   Decided November 27, 2001 

                           No. 00-3105

                    United States of America, 
                             Appellee

                                v.

                   Jose Geraldo, a/k/a Fifio, 
                            Appellant

          Appeal from the United States District Court 
                  for the District of Columbia 
                          (98cr00391-02)

     Stephen C. Leckar, appointed by the court, argued the 
cause and filed the briefs for appellant.

     Jeffrey W. Bellin, Assistant U.S. Attorney, argued the 
cause for appellee.  With him on the brief were Kenneth L. 
Wainstein, U.S. Attorney, John R. Fisher, Thomas J. Tour-
ish, Jr. and Arvind Lal, Assistant U.S. Attorneys.

     Before:  Henderson, Randolph, and Rogers, Circuit 
Judges.

     Opinion for the Court filed by Circuit Judge Randolph.

     Randolph, Circuit Judge:  Searches carried out by federal 
agents at two District of Columbia residences--one at 1430 
Newton Street, the other at 1823 Newton Street--led to the 
arrest, indictment and conviction of Jose Geraldo.  In this 
appeal Geraldo claims the 1430 Newton Street search violated 
the federal knock and announce statute, 18 U.S.C. s 3109, 
and exceeded the scope of the search warrant.  As to 1823 
Newton Street, he maintains that his trial counsel was consti-
tutionally ineffective because he did not assert Geraldo's 
privacy interest in the premises, thus disabling him from 
challenging the search of those premises.

                                I.

     We begin with the Sixth Amendment ineffective counsel 
claim.  On November 12, 1998, FBI agents executed a search 
warrant at Apartment 12 at 1823 Newton Street.  A special 
agent's affidavit supporting the search warrant gave details of 
the FBI's investigation of a conspiracy to distribute cocaine 
involving Geraldo, Luis Elias Ortiz and Jesus Antonio Leo.  
The affidavit concentrated on three transactions.  The first 
occurred on August 3, 1998, when Ortiz and Geraldo sold 
$1,600 worth of cocaine to two informants.  On that day, the 
informants met Geraldo at 1430 Newton Street.  Geraldo told 
one of the informants that he had to go to another location 
about 15 minutes away to cook the cocaine, and he asked 
them to return in about 45 minutes.  FBI agents followed 
Geraldo as he walked to 1823 Newton and back to 1430 
Newton.  Upon his return to 1430 Newton, Geraldo was seen 
pulling a bag of crack cocaine out of his pants as he climbed 
the stairs.  Geraldo then gave the cocaine to Ortiz, who sold 
it to one of the informants in the first floor bathroom at 1430 
Newton.

     The second sale took place on September 14, 1998, when 
Geraldo and Leo sold 44.4 grams of cocaine base to the same 
two informants for $1,200 in the kitchen at 1430 Newton.  

According to the affidavit, prior to the sale one of the 
informants saw Leo cooking the cocaine into a cocaine base in 
the kitchen on the second floor at 1430 Newton and saw 
Geraldo weigh the crack on a scale in the kitchen.

     The third sale occurred on October 5, 1998.  The affidavit 
stated that on this date, Geraldo sold an informant approxi-
mately 60 grams of cocaine base for $1,580 in the hallway 
inside the main entrance at 1430 Newton.

     The affidavit also provided information about telephone 
calls linking 1430 and 1823 Newton Street.  A pen register 
covering a telephone number at 1430 Newton Street disclosed 
more than 60 calls between that number and a number 
subscribed to Apartment 12 at 1823 Newton Street.

     Based on this information, a magistrate issued a search 
warrant for both 1430 Newton Street and Apartment 12 at 
1823 Newton Street.  The agents also obtained arrest war-
rants for several individuals, including Geraldo.  When agents 
executed the search warrant at 1823 Newton Street on No-
vember 12, 1998, they found 69.3 grams of crack cocaine, 242 
grams of powder cocaine in a padlocked closet, four kilogram 
wrappers used for packaging cocaine, and a pot recently used 
to cook crack cocaine.

     Geraldo, having been charged with a variety of narcotics-
related crimes, filed a motion to suppress the evidence ob-
tained at 1823 Newton.  The district court denied the motion 
on the ground that Geraldo had not even suggested that he 
possessed a reasonable expectation of privacy in 1823 New-
ton, Apartment 12.  See Memorandum Order at 4;  Rakas v. 
Illinois, 439 U.S. 128 (1978).

     Geraldo now complains that his trial counsel provided 
ineffective assistance in failing to prove his privacy interest in 
Apartment 12 at 1823 Newton, an interest Geraldo thinks 
could easily have been established. He points to transcripts of 
a hearing on a motion to suppress by one of his co-
defendants, Eligio Pool, and transcripts from the severed trial 
of Pool.  The transcripts indicate the following:  Pool resided 
at Apartment 12;  Geraldo paid him to use the closet at 1823 
Newton to store drugs;  Geraldo put a padlock on the closet;  

and Geraldo had a key to enter both Apartment 12 and the 
closet within the apartment.

     When a defendant first raises a Sixth Amendment claim of 
ineffective counsel on direct appeal of his conviction, other 
courts of appeals usually refuse to adjudicate it, leaving open 
to the defendant the alternative of bringing a collateral 
attack.  See Wayne R. LaFave, Jerold H. Israel & Nancy J. 
King, Criminal Procedure s 11.7(e) at 631 (2d ed. 1999);  see 
also United States v. Petty, 1 F.3d 695, 696 (8th Cir. 1993);  
United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995);  
United States v. Quintero-Barraza, 78 F.3d 1344, 1347 (9th 
Cir.), cert. denied, 519 U.S. 848 (1996).  Our practice has been 
different.  We too generally decline to resolve the issue on 
direct appeal, but rather than requiring the defendant to 
raise the claim collaterally, we remand to the district court 
for an evidentiary hearing.  See United States v. Fennell, 53 
F.3d 1296, 1304 (D.C. Cir. 1995).  Two exceptions to our 
general practice have arisen:  when the trial record conclu-
sively shows that the defendant is entitled to no relief;  and 
when the trial record conclusively shows the contrary.  See 
id.;  United States v. Richardson, 167 F.3d 621, 626 (D.C. 
Cir.), cert. denied, 528 U.S. 895 (1999);  United States v. 
Weathers, 186 F.3d 948, 958 (D.C. Cir. 1999), cert. denied, 529 
U.S. 1005 (2000).  We do not remand Geraldo's claim because 
it is clear that he cannot prevail.

     The defendant bears the burden of proving that his lawyer 
made errors "so serious that counsel was not functioning as 
the 'counsel' guaranteed by the Sixth Amendment" and that 
counsel's deficient performance was prejudicial.  Strickland 
v. Washington, 466 U.S. 668, 687 (1984).  Courts "must 
indulge in a strong presumption that counsel's conduct falls 
within the wide range of reasonable professional assistance."  
Id. at 689.  Geraldo cannot overcome this "strong presump-
tion."

     Sound tactical considerations weighed in favor of counsel's 
decision not to assert Geraldo's privacy interest in Apartment 
12 at 1823 Newton.  If Geraldo had testified at the suppres-
sion hearing about his interest in the premises, his testimony 

could have been used to impeach him at trial if he took the 
stand.  See, e.g., United States v. Jaswal, 47 F.3d 539, 543 (2d 
Cir. 1995);  United States v. Beltran-Gutierrez, 19 F.3d 1287, 
1290-91 (9th Cir. 1994).  And he would have gained nothing 
because his attack on the search would have been frivolous.  
See Strickland, 466 U.S. at 694.

     Under United States v. Leon, 468 U.S. 897, 926 (1984), 
evidence will not be suppressed when a police officer reason-
ably relies in good faith on a warrant issued by a magistrate, 
even if the warrant is later determined to be lacking in 
probable cause.  The affidavit underlying the search warrant 
for 1823 Newton did not so clearly lack indicia of probable 
cause--indeed, it clearly showed probable cause--to make it 
objectively unreasonable for the agents to rely on it.  Preju-
dice cannot result from an attorney's failure to pursue a 
frivolous claim.  Geraldo's suppression motion amounted to 
nothing more, and establishing his privacy interest ran the 
risk of damaging his usefulness as a trial witness.

                               II.

     Geraldo's claims relating to the search of 1430 Newton 
Street are more serious.  On November 12, 1998--the same 
day the FBI executed the search warrant at 1823 Newton--
agents sent two informants into 1430 Newton to place a 
$3,000 order for 125 grams of cocaine.  About five to ten 
minutes after the informants placed their order and left the 
residence (ostensibly to later return with payment for the 
drugs), Geraldo left the townhouse.  Agents followed Geraldo, 
arrested him and seized several keys in his possession.

     A SWAT team then moved in on 1430 Newton pursuant to 
a search warrant:  one group entered through the basement, 
another through the front door.  At the basement level, an 
FBI agent knocked on the door, yelled "FBI, Search War-
rant," and simultaneously used a battering ram to break the 
door before throwing a "flash bang" device into the home.  (A 
"flash bang" is a cylindrical pyrotechnic device that creates a 
loud bang when it goes off, diverting the attention of those 
nearby.)  At the main entrance, agents used Geraldo's keys 

to enter.  One of the agents yelled "FBI, Search Warrant" as 
the front door was swinging open, and a flash bang device 
was then thrown through the open door.

     Before entering 1430 Newton, the agents had limited infor-
mation about the interior of the townhouse.  Informants had 
told them that it was a large home in which several people 
lived, each with access to the common areas, as opposed to a 
multi-unit apartment building with distinct apartments inside.  
In addition, informants had told agents that there were no 
numbers on individual doors inside and that the doors on the 
second floor of the townhouse did not have separate locks.

     Once inside 1430 Newton Street, the agents learned that 
the house did in fact consist of several individual rooms with 
locks on the doors.  Agents entered all bedrooms, including 
those that were locked, in order to locate any persons hiding 
within the residence.  After locating four persons and speak-
ing with them about which rooms belonged to the persons 
named in the warrant, the agents limited their search to 
common areas and the rooms of persons, including Geraldo, 
named in arrest warrants the agents had obtained.

     On the second floor, agents searched the kitchen because 
that was an area where a controlled buy had taken place.  
They also searched Geraldo's bedroom, as well as a room next 
to Geraldo's believed to belong to another man suspected of 
drug sales.  While searching Geraldo's bedroom, the agents 
found a razorblade with cocaine residue hidden between the 
mattress and boxsprings of the bed, as well as a key to a 
padlock, a passport, and other documents.  The key was later 
determined to fit a lock on the closet at 1823 Newton Street 
containing drugs.

     Geraldo's motion to suppress this evidence was on the 
grounds that the agents failed to comply with the federal 
knock and announce statute and exceeded the scope of the 
search warrant.  After an evidentiary hearing, the district 
court denied the motion, finding that exigent circumstances 
warranted the agents' entrance into the home without fully 
complying with the federal knock and announce statute and 
that the scope of the agents' search was reasonable.  In 

executing a federal search warrant, an officer "may break 
open any outer or inner door or window of a house ... if, 
after notice of his authority and purpose, he is refused 
admittance...."  18 U.S.C. s 3109.  In this case, the 
agents--acting pursuant to a predetermined entry plan--did 
not wait for a refusal.  They announced their presence as 
they simultaneously entered the home.  The question there-
fore is not whether they complied with s 3109, but rather 
whether exigent circumstances excused compliance.

     We put to one side the fact that Geraldo was not at 1430 
Newton when the search occurred.  Although the Ninth 
Circuit has held that the defendant must be present in order 
to enjoy the protection of the knock and announce statute, see 
Mena v. Simi Valley, 226 F.3d 1031, 1035 n.2 (9th Cir. 2000);  
United States v. Valencia-Roldan, 893 F.2d 1080, 1081 n.1 
(9th Cir.), cert. denied, 495 U.S. 935 (1990), and the First 
Circuit has expressed "serious doubt" whether an absentee 
owner may raise a s 3109 claim, United States v. DeLutis, 
722 F.2d 902, 908 (1st Cir. 1983), the issue is unnecessary for 
us to decide.

     The knock and announce procedure need not be followed if 
officers have a "reasonable suspicion that knocking and an-
nouncing their presence, under the particular circumstances, 
would be dangerous or futile, or that it would inhibit the 
effective investigation of the crime by, for example, allowing 
the destruction of evidence."  United States v. Ramirez, 523 
U.S. 65, 70 (1998).  Some courts hold that the presence of a 
firearm may not in itself create an exigency sufficient to 
excuse compliance with the statute.  See, e.g., United States 
v. Moore, 91 F.3d 96, 97 (10th Cir. 1996);  United States v. 
Bates, 84 F.3d 790, 795 (6th Cir. 1996).  Whatever the merits 
of this position, there is agreement that the presence of a 
firearm coupled with information such as a suspect's violent 
tendencies, criminal record, or specific violent threats is 
enough to create an exigency because the weapon might be 
used.  See, e.g., Ramirez, 523 U.S. at 71;  United States v. 
Harris, 435 F.2d 74, 81 (D.C. Cir. 1970), cert. denied, 402 U.S. 
986 (1971);  United States v. Nabors, 901 F.2d 1351, 1354 (6th 
Cir.), cert. denied, 498 U.S. 871 (1990).

     In this case, the agents were not aware before they entered 
1430 Newton that any residents had criminal records or 
violent tendencies.  But they did have information that 1430 
Newton had been robbed months earlier and that one man 
residing there (Elias Ortiz) had been seen wearing a revolver, 
allegedly to protect the residence from additional robberies.  
Because the agents had specific knowledge that Ortiz kept a 
firearm to protect against intruders and therefore might be 
quick to use it, the agents had reason to suspect danger.  The 
fact that they assembled a SWAT team and took the precau-
tion of using a "flash bang" tends to show that they so viewed 
the situation.  Because the officers' belief that they were 
entering a dangerous situation was objectively reasonable, 
they were not required to knock and wait for a response.

     Geraldo's remaining argument is that the agents exceeded 
the scope of the search warrant at 1430 Newton Street by 
continuing to search the townhouse after determining that 
there were individual, locked bedrooms within the home, 
indicative of a multi-unit dwelling.  There is nothing to this.  
Upon discovering that 1430 Newton consisted of several 
individual rooms secured by padlocks, the agents properly 
limited their search to common areas and those rooms inhab-
ited by persons named in the arrest warrants and in the 
affidavits accompanying the search warrant.  See Maryland 
v. Garrison, 480 U.S. 79, 85 (1987).  This was a reasonable 
response to protect against an overbroad search of third 
persons' rooms not intended to be included within the war-
rant.  Even if the Fourth Amendment rights of third par-
ties--who were not named in the search warrant--were 
violated by the agents' entrance into their rooms, see Mena v. 
Simi Valley, 226 F.3d 1031 (9th Cir. 2000), the agents did not 
infringe upon Geraldo's Fourth Amendment rights when they 
searched other individuals' rooms within 1430 Newton.  See 
Rakas v. Illinois, 439 U.S. 128, 133-34 (1978).  In any event, 
the cocaine encrusted razor blade, the documents, and the 
key to the padlocked closet at 1823 Newton were found in 
Geraldo's room.

                                                                 Affirmed.

                                                                    