                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
            ___________

            No. 99-2322
            ___________

United States of America,               *
                                        *
                  Appellant,            *
                                        *
      v.                                *
                                        *
Randall Lee Gamble,                     *
                                        *
                  Appellee.             *
                                            Appeals from the United States
            __________                      District Court for the Western
                                            District of Missouri.
            No. 99-2323
            __________

United States of America,               *
                                        *
                  Appellant,            *
                                        *
      v.                                *
                                        *
Nadine Wenig,                           *
                                        *
                  Appellee.             *
                                   ___________

                              Submitted: November 17, 1999

                                  Filed: December 6, 1999
                                   ___________
Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________

FAGG, Circuit Judge.

       On April 5, 1997, Springfield, Missouri police officers executed a search warrant
on Randall Lee Gamble's and Nadine Wenig's residence. Gamble and Wenig later
challenged evidence discovered during the search, claiming the search violated the
Fourth Amendment because the officers did not knock and announce themselves before
entering. Testimony given at the suppression hearing showed that an officer announced
"Police, Search Warrant" and, almost simultaneously, kicked the door with enough
force to have opened it. Rader also testified that at the same moment the officer
kicked, someone inside the residence opened the door and the officers entered the
residence. The district court found the officer's kick was a no-knock violation under
the Fourth Amendment and granted the motion to suppress. The Government appeals.

       The Government contends the district court improperly applied the knock and
announce rule because the rule is not violated when "an occupant of the residence to
be searched opened the door after the police announced their presence and purpose and
before a forcible entry." It is well-settled that an officer must first give "notice of his
office and purpose" and "be refused admittance" before making a forcible entry into a
private dwelling. Mo. Rev. St. § 544.200 (1994); accord 18 U.S.C. § 3109 (1994);
United States v. Goodson, 165 F.3d 610, 614 n.2 (8th Cir.), cert. denied, 119 S. Ct.
2385 (1999); State v. Bryson, 506 S.W.2d 358, 361 (Mo. 1974). One purpose of the
knock and announce rule is to give occupants time to answer the door before a forcible
entry is made. See United States v. Schenk, 983 F.2d 876, 879 (8th Cir. 1993). If an
occupant voluntarily admits officers, no impermissible forcible entry has occurred. See
United States v. Thomlinson, 897 F.2d 971, 972-73 (8th Cir. 1990). The record before
the district court contained evidence of both a forcible entry, an officer's kick, and a
peaceable entry, an occupant voluntarily opening the door. Without determining which
act caused the door to open, the district court found that:

                                           -2-
      whether an occupant inside the house was opening or had begun to open
      the door when [the officer] began to kick the door does not negate the no-
      knock violation that occurred. The fact remains that, without knocking,
      the officer announced "Police, Search Warrant," and then, almost at the
      same time, began to kick the door. The Court notes, furthermore, that
      Officer Rader testified that he believed [the] kick would have, in itself,
      pushed the door open. The Court finds that a no-knock entry was made
      the minute [the officer] began to kick the door. Therefore, the "knock and
      announce" requirement was not met, Defendant's Fourth Amendment
      rights were violated, and the evidence must be suppressed.

       We conclude that proper application of the knock and announce rule requires the
district court to determine whether the officer's kick caused the door to open, making
this entry forcible under the knock and announce rule, or whether an occupant
voluntarily admitted the officers, making this entry voluntary for purposes of the knock
and announce rule. We thus vacate the order granting the motion to suppress and
remand to the district court for further proceedings consistent with this opinion.

      A true copy.

             Attest:

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




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