                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3775
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Damion J. Morris,                       *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: April 12, 2005
                                Filed: January 31, 2006
                                 ___________

Before COLLOTON, McMILLIAN,1 and BENTON, Circuit Judges.
                         ___________

COLLOTON, Circuit Judge.

       Damion Morris entered a conditional plea of guilty to a charge of possession
with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and to a
forfeiture count, in violation of 21 U.S.C. § 853, reserving the right to appeal the
district court’s2 denial of his motion to suppress evidence. We affirm.


      1
        The Honorable Theodore McMillian died on January 18, 2006. This opinion
is filed by the remaining members of the panel pursuant to 8th Cir. Rule 47E.
      2
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable James
       Morris’s motion to suppress evidence concerned the execution of a search
warrant conducted at his residence in Springfield, Missouri, on April 28, 2003, at
about 9:40 p.m. Officers obtained a warrant to search the residence for marijuana, and
the warrant was executed by the Special Response Team (“SRT”) of the Springfield
police department. Morris’s challenge to the search turns on whether the search was
rendered unreasonable by the failure of the officers properly to knock and announce
their presence before entering. See Wilson v. Arkansas, 514 U.S. 927, 930 (1995).

       At the entrance to Morris’s residence, there were two doors located at the front
entryway: an outer screen door and an inner wood-framed front door with a small
window. In accordance with standard procedure of the SRT, Officer Troy Jensen
knocked and announced at the screen door, and then attempted to open the screen
door, which he found to be locked. Two seconds after making his announcement,
Jensen opened the screen door with the assistance of a tool and without damaging the
door. After the screen door was opened, officers moved toward the inner door, and
Corporal Scott Umbarger advised the other officers that he saw through the window
that a person was walking toward the front door. Officer Don Mitchell stepped up to
the door and saw a male come to the window of the door and look out. Mitchell
announced, “Police officer, search warrant.” He then heard the sound of running on
a wood floor. Shortly thereafter, convinced that no one was going to open the door,
Mitchell breached the door by using a ram to strike the door three times.

       When the officers entered the residence, they saw an individual leaving the
living room. Corporal Umbarger pursued the person down a hallway and eventually
found Morris in a bedroom with a female. Morris testified that he was sitting in a
recliner when he heard a crack on the door. He said that he did not hear officers state,
“police, search warrant,” and that upon hearing the noise, he ran to the back of the




C. England, United States Magistrate Judge for the Western District of Missouri.

                                          -2-
house to alert his girlfriend, who was seven months pregnant, that “something was
going on.” Officers eventually discovered marijuana and cocaine in the residence.

      The district court, adopting the magistrate’s report and recommendation, denied
the motion to suppress on two grounds. First, the court found that when officers saw
Morris look out the window and run down the hall, there existed exigent
circumstances that excused compliance with the knock-and-announce requirement.
See United States v. Banks, 540 U.S. 31, 36-37 (2003). Alternatively, the court
concluded that even in the absence of exigent circumstances, the officers had
complied with the knock-and-announce requirement, because at least twelve seconds
elapsed between Officer Jensen’s initial announcement at the screen door and the
breach of the wooden front door to the house.

      Morris raises on appeal an issue not addressed by the district court: whether the
breach of the screen door, which occurred only two seconds after Jensen’s knock and
announcement, was an unreasonable search that requires suppression of evidence later
seized in the house after police breached the inner wooden door. The government
argues that this contention is subject to review only for plain error, because Morris did
not present the argument to the magistrate judge or in his objections to the
magistrate’s report and recommendation.

       After reviewing the materials presented to the district court, we do think the
issue was fairly raised. In his brief in support of the motion to suppress, Morris
argued that both Officer Jensen (who breached the screen door) and Officer Mitchell
(who breached the inner door) forcibly entered the residence in violation of the Fourth
Amendment. (J.A. at 17). Morris said the violation occurred when the officers forced
entry at the same time as they knocked and announced, “as set forth in Officer
Schindler’s report.” (Id. at 12). Morris quoted a portion of Schindler’s report stating
that “Officer Jensen knocked and announced in a loud and clear voice “Police Search
Warrant” as he pryed [sic] open the locked screen door.” (Id.). He also quoted 18

                                          -3-
U.S.C. § 3109, which authorizes an officer to “break open any outer or inner door or
window of a house” if he is refused admittance after knocking and announcing. (J.A.
at 13) (emphasis added). We thus conclude that Morris fairly raised a challenge to the
breach of the screen door and, although he did not argue the point in his objections to
the report and recommendation, we nonetheless review “de novo the ultimate question
whether the Fourth Amendment has been violated.” United States v. Vaudt, 413 F.3d
724, 726 (8th Cir. 2005).

       Morris contends that the breach of the outer screen door violated the Fourth
Amendment, because the officers waited only two seconds after knocking and
announcing before they forced open the door. We will assume that the opening of the
locked screen door, although it gave access only to the small space between the screen
door and the inner door, was a “search” for purposes of the Fourth Amendment, as the
police entered an area immediately adjacent to and associated with the home. See
United States v. Oliver, 466 U.S. 170, 180 (1984). The government implicitly
concedes that a two-second delay after announcing does not comply with the common
law knock-and-announce rule, but argues that it was reasonable to open the screen
door without following the rule, because the breach was necessary “to secure proper
positioning in the event a forced entry became necessary.” The contention seems to
be that although the police did not have cause, when the screen door was breached,
to enter the dwelling proper without complying with the knock-and-announce
requirement, the potential that an exigency would arise later justified an immediate
breach of the first barrier presented by the screen door.

       It may be that in some instances, the flexible requirements of “reasonableness”
under the Fourth Amendment would permit the breach of a screen door without a prior
knock and announcement, even where there is no basis to enter the remainder of the
residence immediately. Felony drug investigations frequently present circumstances
where police officers have reason to believe that evidence would likely be destroyed
if advance notice were given, Richards v. Washington, 520 U.S. 385, 391 (1997), and

                                         -4-
this is not a case where police knew that the individuals present at the residence had
no connection to the drug activity, or where the type of drugs named in the warrant
were impossible to destroy quickly. Id. at 393. The government does not here
contend, however, that the risk of destruction of marijuana, in and of itself, justified
dispensing with the knock-and-announce procedure. The argument advanced is that
if police were to gather additional reasons to believe that evidence might be
destroyed, then the marginal delay attendant to opening the outer door would interfere
with recovery of the evidence, such that the preliminary breach of the screen door was
a reasonable preparatory step. On the evidence in this record, we are not prepared to
conclude that the time required to open the screen door and reach the inner door,
which appeared to be only two seconds, was great enough to support the government’s
theory of reasonableness.

       We turn, therefore, to the question whether an unreasonable opening of the
screen door without adequate announcement requires suppression of the evidence
obtained from the interior of Morris’s dwelling. In considering this problem, we first
conclude that the officers’ subsequent breach of the inner door was reasonable. The
district court made factual findings, crediting the testimony of police officers, that a
person appeared at the window of the door after police knocked, and then disappeared
as police heard a running noise. We reject Morris’s contention, based on
inconsistencies between the testimony and a police report, that it was clear error for
the district court to believe the testimony of these officers. The evidence of what
occurred while police were outside the front door, combined with the risk of
destruction of evidence present in most narcotics cases, easily satisfied the
requirement that police have reasonable suspicion that further compliance with the
knock-and-announce requirement would inhibit the effective investigation of the
crime. See Richards, 520 U.S. at 394.

       Even if we do not consider the claimed exigency, moreover, the district court
credited the testimony of officers that they waited ten seconds, after knocking and

                                          -5-
announcing, before they broke down the inner door. (Morris correctly points out that
the district court’s finding of a twelve-second wait is not supported by the record, but
the court did credit the testimony of the officers, and the record clearly supports an
interval of ten seconds). The reasonableness of a delay by police after announcing
their presence varies with the circumstances of each search. Here, given the risk of
destruction of evidence usually present in drug trafficking investigations, the
relatively modest size of the home that an occupant would have to traverse to answer
the door, and the likelihood that occupants would be awake at the time of the search,
we conclude that entry into the residence of a drug trafficking suspect, ten seconds
after knocking and announcing at a reasonable evening hour, was constitutionally
reasonable. See United States v. Jones, 208 F.3d 603, 610 (7th Cir. 2000); United
States v. Myers, 106 F.3d 936, 940 (10th Cir. 1997); United States v. Gatewood, 60
F.3d 248, 250 (6th Cir. 1995); United States v. Knapp, 1 F.3d 1026, 1031 (10th Cir.
1993); United States v. Garcia, 983 F.2d 1160, 1168 (1st Cir. 1993); cf. Banks, 540
U.S. at 38 (wait of 15 to 20 seconds after knock and announcement was reasonable);
United States v. Lucht, 18 F.3d 541, 549 (8th Cir. 1994) (officers were constructively
refused admittance after waiting 20 seconds); United States v. Streeter, 907 F.2d 781,
788-89 (8th Cir. 1990) (surveying case law on time limit under § 3109), overruled on
other grounds by United States v. Wise, 976 F.2d 393, 401 (8th Cir. 1992) (en banc).

       As for whether the initial breach of the screen door mandates suppression of
evidence seized in the house, our court held in United States v. Marts, 986 F.2d 1216
(8th Cir. 1993), in the context of 18 U.S.C. § 3109, that an entry in violation of the
knock-and-announce rule required suppression of evidence obtained immediately
upon the illegal entry. Id. at 1220. A divided panel rejected the argument that
because the information leading to the issuance of the warrant was obtained
independent of any knock-and-announce violation, the evidence should be admissible
under the independent source doctrine. See Segura v. United States, 468 U.S. 796
(1984). After finding it “significant” that the government did not raise this argument
in the district court or on appeal, id. at 1219-20, the Marts panel observed that the

                                          -6-
officers in question “seized the evidence immediately upon their illegal entry,” and
expressed concern that if the evidence were not suppressed, then “officers, in
executing a valid search warrant, could break in doors of private homes without
sanction.” Id. at 1220.

        Marts involved a single search: Officers opened a door to a trailer without
proper knock and announcement, and then discovered evidence immediately upon
their entry. In cases involving a second search after an initial search that violated the
knock-and-announce rule, the Ninth Circuit has held that the exclusionary rule should
not apply. Where officers executing a search warrant illegally entered a gated alcove
outside of an apartment, but then lawfully entered into the solid doorway of the
apartment by appropriate compliance with the knock-and-announce rule, the court
held that the procurement of the warrant and the lawful entry of the apartment were
sufficient to “purge the evidence of any taint from the illegal entry.” United States v.
Moreno, 758 F.2d 425, 427 (9th Cir. 1985). The court explained that “the information
from which the warrant was procured was completely distinct from the illegal entry,”
that “no evidence was obtained between the time of the illegal entry into the alcove
and the entry into the remainder of the apartment after compliance with section 3109,”
and that the disputed evidence was seized only after the latter entry. Id.
Subsequently, in an unpublished opinion applying Moreno, the Ninth Circuit
concluded, in a case almost identical to this one, that the search of a home would be
“purged of the taint of the opening of the locked screen door in violation of 18 U.S.C.
§ 3109 if the second entry through the wooden door was proper.” United States v.
Otero, No. 91-10475, 1993 WL 6618, at *3 (9th Cir. Jan. 14, 1993) (unpublished
mem.).

      Surveying this landscape, the Sixth Circuit has distinguished between cases
involving a single illegal entry and search, such as Marts, and cases also involving a
second search pursuant to a valid warrant, such as Moreno. Considering a case in
which police entered a single door to a residence without following the knock-and-

                                          -7-
announce requirement, the court held that evidence seized following “a single, illegal
search” must be suppressed, and that the independent source rule did not apply.
United States v. Dice, 200 F.3d 978, 986 (6th Cir. 2000). The Dice court reasoned
that a knock-and-announce violation “deems a search illegal due to the unlawful
method in which it was executed even if the search were legal in its purpose and
authority (as demonstrated by a valid warrant).” Id. at 985. The court intimated,
however, that the result may well be different in a case involving a second search that
has both a valid warrant (purpose) and a legal entry (method). Id. at 985-86.

      This is a two-search case. The first search, conducted by prying open the screen
door, did not comply with the Fourth Amendment. The second search, involving a
breach of the inner door to the residence, was lawful. The one-search precedent of
Marts is thus not controlling, and we are persuaded by the analysis of the Ninth
Circuit in Moreno that Marts should not be extended to a two-search case like this
one. As in Moreno, the warrant to search Morris’s residence was procured based on
information completely distinct from the illegal breach of the screen door, and no
material evidence was obtained between the time of the illegal entry through the
screen door and the lawful entry into the residence. The seizure of evidence was thus
accomplished through a valid warrant and a legal entry, and suppression is not
warranted. Cf. United States v. Langford, 314 F.3d 892, 894-95 (7th Cir. 2002).
Accordingly, we hold that the district court correctly denied the motion to suppress
evidence.

      The judgment is affirmed.
                           ______________________________




                                         -8-
