United States v. Kennedy

32 F.3d 876, 1994 WL 447262
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 17, 1994
DocketNos. 92-5885, 92-5886, 93-5037, 93-5106 and 93-5142
StatusPublished
Cited by352 cases

This text of 32 F.3d 876 (United States v. Kennedy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kennedy, 32 F.3d 876, 1994 WL 447262 (4th Cir. 1994).

Opinion

Affirmed in part; vacated and remanded in part by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Senior Judge RICHARD L. WILLIAMS joined.

OPINION

WILKINSON, Circuit Judge:

Appellants raise numerous challenges to their convictions and sentences stemming from their involvement in a drug distribution conspiracy. We find that their challenges lack merit and therefore affirm the judgments below. We reverse, however, on the government’s cross-appeal, and hold that a [881]*881drag conspiracy conviction may serve as the “instant offense” supporting a career offender status enhancement under § 4B1.1 of the Sentencing Guidelines.

I.

In the spring of 1991, federal agents from the Drag Enforcement Administration (“DEA”) began an investigation of the drag distribution activities of Alvin Stewart and Walter Ingram. The DEA agents initially placed dialed number recorders on Stewart and Ingram’s telephones and monitored their beepers. Between September 1991 and April 1992, the investigators also conducted court-authorized wiretap surveillance on the telephones of Stewart, Ingram, and Ingram’s family members.

The wiretaps revealed the existence of a complex drag distribution network centered around Ingram. Ingram would receive cocaine from Stewart or Joseph Kennedy and would either directly distribute it to other cocaine distributors or order his “workers” to prepare it for street distribution. Ingram’s workers included (1) Patricia Carmichael, who supervised street distribution for Ingram, (2) Charles Spencer, who permitted Ingram to use his apartment for drag-related business and collected money for street cocaine sales, and (3) Walter Powell, who ran errands for Ingram and helped him to collect money from other drag dealers. Through the investigation, the federal agents also discovered that Stewart and Kennedy each had their own, smaller drag distribution network.

In March 1992, federal and state investigators searched the homes of Spencer, Kennedy, and Ingram pursuant to warrant, and recovered incriminating items at each house. More specifically, they recovered drag-related paraphernalia containing cocaine residue at Spencer’s home; cocaine, large amounts of cash, and a loaded .38 caliber revolver at Kennedy’s house; and an electronic telephone book containing the numbers of Kennedy, Stewart, and Carmichael at Ingram’s apartment.

On April 14, 1992, a federal grand jury for the District of Maryland charged Ingram, Kennedy, Powell, Carmichael, Spencer, and three others involved in the drug distribution operation with one count of conspiracy to distribute and possess with intent to distribute a mixture of substances containing a detectable amount of cocaine. See 21 U.S.C. §§ 841(a)(1) & 846. A single jury trial for the charged defendants began on September 10, 1992. Several days after the trial began, however, the district court granted the defendants’ collective motion to sever the trial, and ordered that all defendants except Ingram proceed to a new trial. The trial then continued with Ingram as the sole remaining defendant, and the jury returned a guilty verdict against him on September 23, 1992. Later that month, Kennedy went to trial with two members of his drag distribution network. His co-defendants changed their pleas to guilty shortly after the trial began, and the jury found Kennedy guilty in October 1992. Finally, the remaining defendants— Carmichael, Spencer, and Powell — were tried together in November 1992, and also found guilty.

Ingram, Kennedy, Carmichael, and Powell now appeal their convictions and resulting sentences, alleging error in various aspects of the district court’s pretrial, trial, and sentencing rulings. The government also filed a cross-appeal on a sentencing issue involving appellant Ingram. The various appeals have been consolidated for review.

II.

Appellant Kennedy first contends that the district court erred in denying his pretrial motion to suppress evidence seized from his home. On March 26, 1992, DEA agents and Baltimore County police officers executed a state search warrant for Kennedy’s house. In executing the warrant, the agents and officers gathered on the back porch of the house, knocked on the back door, yelled “Police” several times, and then broke down the door. During the search that followed, the officers seized a fully loaded revolver, 150 vials of cocaine, and cash in excess of $27,000.

Kennedy argues that the recovered evidence should have been excluded because the underlying search violated the reasonableness standard of the Fourth Amendment. In making this argument, Kennedy relies on [882]*882the federal “knock and announce” statute, which provides, in relevant part, that an officer may

break open any outer or inner door or window of a house ... to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance....

18 U.S.C. § 3109. Because this statute “encompasses the constitutional requirements of the fourth amendment,” it not only governs federal searches by federal agents, but also provides the proper framework for analyzing the execution of state search warrants. United States v. Singer, 943 F.2d 758, 761 (7th Cir.1991); see also United States v. Buckley, 4 F.3d 552, 558 (7th Cir.1993); Simons v. Montgomery County Police Officers, 762 F.2d 30, 33 (4th Cir.1985). According to Kennedy, the officers acted illegally in executing the state search warrant for his house because they failed to announce the purpose of their visit, and also failed to wait for a refusal of admittance before breaking down the back door of his house.

We disagree. It is true that the officers in this case broke into Kennedy’s house immediately after knocking and yelling “Police,” and failed to wait for an explicit refusal of admittance or the lapse of a significant amount of time before breaking into the premises. However, the officers’ failure to wait for a response does not mandate a conclusion that the search was illegal. It is well-established that non-compliance with the knock and announce requirements may be excused where exigent circumstances render strict compliance imprudent. See, e.g., United States v. Lalor, 996 F.2d 1578, 1584 (4th Cir.1993); United States v. Nabors, 901 F.2d 1351, 1354 (6th Cir.1990); United States v. Spinelli, 848 F.2d 26, 28 (2d Cir.1988). Whether exigent circumstances existed at the time of the entry, and whether the degree of the exigency was sufficient to justify the extent of the noneompliance, is determined by an analysis of the facts of each case. See United States v. Lucht, 18 F.3d 541, 549 (8th Cir.1994). As a general matter, however, exigent circumstances have been found to exist where the officers at the premises reasonably believed that waiting for a response before entering the premises would create an opportunity for the occupants to destroy relevant evidence or to prepare an attack against them. See Lalor, 996 F.2d at 1584; United States v. Arias, 923 F.2d 1387, 1391 (9th Cir.1991).

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Cite This Page — Counsel Stack

Bluebook (online)
32 F.3d 876, 1994 WL 447262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kennedy-ca4-1994.