UNITED STATES COURT OF APPEALS for the Fifth Circuit

_____________________________________

No. 92-8059 _____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SYLVIA SAGARIBAY and JAVIER ARMANDO RUEDA,

Defendants-Appellants.

______________________________________________________

Appeals from the United States District Court for the Western District of Texas ______________________________________________________ (January 27, 1993)

Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

DAVIS, Circuit Judge:

Sylvia Sagaribay (Sagaribay) was charged with conspiracy to

possess heroin with intent to distribute, in violation of

, and possession of heroin with intent to distribute, in

violation of

(a)(l). Javier Armando Rueda (Rueda),

her codefendant, was charged with the same two offenses, and with

being a convicted felon in possession of a firearm, in violation of

l8 U.S.C. § 922(g)(l). Both were convicted on all counts after a

non-jury trial. Both appeal their convictions. We affirm.

I.

On November 27, 1990, Detective Rodolfo Avila (Avila), of the

El Paso Police Department, obtained, from a local justice of the peace, a search warrant for 7283 J. C. Cramer Street, Apt. 8l in El

Paso, Texas. The affidavit in support of the search warrant stated

that Avila had received information from a confidential informant

that Rueda, Sagaribay and two other individuals were in possession

of heroin in that apartment. The apartment had a new solid wood

door. So, before executing the warrant, Avila obtained a pass key

from the manager of the apartment complex.

The next day, at about 10:00 a.m., Avila and three other state

police officers arrived at the door of the apartment to execute the

search warrant. Avila knocked on the door and yelled "Police

officers with a search warrant." Simultaneously and without

waiting for a response, Avila unlocked the door with the pass key

and pushed it open. The door was difficult to open, because pieces

of furniture had been pushed up against it.

Once in the apartment, the officers saw Sagaribay, Rueda, and

another man sitting on the living room floor. Within an arm's

length of the individuals the officers observed heroin, money,

balloons, razor blades, scissors, and a dinner plate on the floor.

In the same room, the officers found additional balloons packaged

with heroin and a bag with over $6,000 cash in it. The officers

also found a small baggy of marijuana and a Smith and Wesson .357

magnum revolver in the master bedroom. The officers found a total

of 39.11 grams of heroin in the apartment.

Victor Maldonado (Maldonado), an agent of the Bureau of

Alcohol, Tobacco and Firearms, interviewed Rueda at the police

station about the gun seized by the police. Maldonado testified

2 that Rueda "told me he had bought [the handgun] a month prior at a

flea market." Maldonado also testified that he gave Miranda

warnings to Rueda, and that Rueda orally waived his rights before

making the statement.

II.

On appeal, Sagaribay and Rueda both argue that the fruits of

the search should have been suppressed because the officers failed

to comply with

, the "knock and announce" statute,

before entering the apartment. In addition, Rueda challenges the

admissibility of his confession on the ground that he did not

voluntarily and knowingly waive his right to remain silent before

giving the statement. Sagaribay challenges the sufficiency of the

evidence in support of her convictions. We consider these

arguments below.

A.

Appellants' main argument is that the search in this case

violated the Fourth Amendment protection "against unreasonable

searches and seizures" because it violated the knock and announce

requirements of § 3109. Section 3109 provides that an officer

executing a search warrant may break open a door only if "after

notice of his authority and purpose, he is refused admittance."

Texas has no statute similar to § 3109. The district court

determined that the state officers' conduct was proper under Texas

law. It also found that § 3109 did not apply to this case because

"these were state officers executing a Texas search warrant."

3 The Fourth Amendment prohibits only unreasonable searches.

Bell v. Wolfish,

,

,

(1979) ("Wolfish"). The test of reasonableness under the Fourth

Amendment is not capable of precise definition or mechanical

application. Wolfish,

. In each case it requires

a balancing of the need for the particular search against the

invasion of personal rights that the search entails. Wolfish,

.

Undoubtedly, the Fourth Amendment and § 3109 serve overlapping

purposes. As the Supreme Court noted, Congress codified in § 3109

"a tradition embedded in Anglo-American law." Miller v. United

States,

, 313

,

(1958)

(applying District of Columbia law, which was "substantially

identical" to § 3109). Of this tradition, the Court said: "The

requirement of prior notice of authority and purpose before forcing

entry into a home is deeply rooted in our heritage and should not

be given grudging application." Miller,

. Section

3109 serves several Fourth Amendment interests. Among those are

(1) protecting law enforcement officers and household occupants

from potential violence; (2) preventing unnecessary destruction of

private property; and (3) protecting people from unnecessary

intrusion into their private activities. United States v. Nolan,

(3rd Cir. 1983).

While the provisions overlap, the extent of that overlap is

not clear. In Ker v. California,

,

,

(1963), the Court had an opportunity to clarify the

4 relationship of § 3109 to the Fourth Amendment. A plurality

refrained from imposing an inflexible Fourth Amendment "knock and

announce" rule incorporating in all circumstances the particular

procedures delineated in § 3109. Instead, it held that exigent

circumstances justified the search. Ker,

.

Four dissenters (Chief Justice Warren and Justices Brennan,

Douglas, and Goldberg) would have reached the issue and held that

"[t]he protections of individual freedom carried into the Fourth

Amendment . . . undoubtedly included this firmly established

requirement of an announcement by police officers of purpose and

authority before breaking into an individual's home." Ker,

. In their view, "the Fourth Amendment is violated by an

unannounced police intrusion into a private home, with or without

an arrest warrant, except (1) where the persons within already know

of the officers' authority and purpose, or (2) where the officers

are justified in the belief that persons within are in imminent

peril of bodily harm, or (3) where those within, made aware of the

presence of someone outside . . . are then engaged in activity

which justifies the officers in the belief that an escape or the

destruction of evidence is being attempted." Ker,

.

Similarly, in United States v. Mueller,

(5th Cir. l990), we declined to consider this issue because the

search in question was justified by exigent circumstances. In

dicta, we have said that searches in violation of § 3109's knock

and announce rule are unreasonable because "this statute is

designed to serve Fourth Amendment interests . . . ." United

5 States v. Cadena,

, 1264 n. 28 (5th Cir. l978),

overruled on other grounds, United States v. Michelena-Orovio, 7l9

F.2d 738, 756-57 (5th Cir. 1983) (en banc).

Several circuits have found a "knock and announce" requirement

in the Constitution, though often in dicta and sometimes without

close attention to the plurality opinion in Ker.1 See United

States v. Francis,

(6th Cir.), cert. denied,

,

,

(1981) ("Though each case

by itself is less than compelling, their conclusion has been

unanimous: the Fourth Amendment forbids the unannounced, forcible

entry of a dwelling in the absence of exigent circumstances.")

(dicta).

In a case similar to ours, the Third Circuit closely analyzed

the relationship of § 3109 to the Fourth Amendment. United States

v. Nolan,

(3rd Cir. 1983). In Nolan, the Third

Circuit followed the Ker plurality, which it read as rejecting "the

proposition that the Fourth Amendment mandates a knock and announce

requirement with precise and narrowly defined exceptions, although

a failure by police to knock and announce could, depending on the

circumstances, violate the more general Fourth Amendment

reasonableness requirement for any arrest." Nolan,

. Nolan involved a daytime execution of a valid search warrant

1 See, e.g., United States v. Baker,

, 202 n.7 (10th Cir. 1980) ("knock-announce" rule incorporated "to some extent" in Fourth Amendment) (dicta); United States v. Valenzuela,

(9th Cir.) (same) (dicta), cert. denied,

,

,

(l979); United States v. Andrus,

(7th Cir. 1985). Rivera v. United States,

(2d Cir. 1991) (merger of § 3109 and Fourth Amendment).

6 in which a motel manager opened the door with a passkey and the

officers announced their identity as they entered. The Third

Circuit concluded that these circumstances did not "give rise to

the kind of unreasonable seizure proscribed by the Fourth

Amendment." Nolan,

. See also United States v.

Daoust,

(D. Me. 1989), aff'd,

(1st Cir. 1990) ("The constitutionality of a forcible entry does

not depend upon ritual adherence to the statutory 'knock and

announce' procedures of section 3109.").

Like the Third Circuit, we decline to hold that the Fourth

Amendment inflexibly incorporates the requirements of § 3109 into

its reasonableness requirement. Considering the totality of the

circumstances in this case, including the interests protected by §

3109, this was not an unreasonable search under the Fourth

Amendment. By announcing their identity and purpose as they

entered the door, the officers sought to prevent the possibility of

unnecessary violence. By using a pass key, the officers prevented

unnecessary destruction of private property. By conducting the

search in the daytime, after obtaining a valid search warrant, the

officers minimized the risk that they would unnecessarily intrude

into the defendants' private activities.

The officers also reasonably considered the possibility that

material evidence would be destroyed. The district court found

that the officers had probable cause to believe that heroin was

present in the apartment. During the three hours before executing

the warrant, the officers saw several people, including a known

7 addict, enter and leave the apartment. We have considered

circumstances similar to these to be exigent circumstances that

would excuse federal officers from compliance with § 3109. United

States v. Carter,

(5th Cir.), cert. denied,

,

,

(1978). ("[H]eroin is a

readily disposable item."). We need not decide whether these

circumstances rose to the same level; the search was reasonable

even if we consider them to be only mild exigencies. This search

did not violate rights reserved to the defendants under the Fourth

Amendment.

B.

Sagaribay and Rueda suggest that § 3109 applies of its own

force to state police officers executing state authorized searches

and seizures if the evidence they seize is used in a federal

prosecution. In Preston v. United States,

,

,

(l964) ("Preston"), the Supreme

Court held that evidence obtained by state officers is only

admissible against a defendant in a federal trial if the search and

seizure were reasonable under the Fourth Amendment. The Eighth

Circuit held that Preston does not require the exclusion of

evidence seized by state officers and offered in a federal

prosecution, as long as the seizure was reasonable under the Fourth

Amendment. United States v. Moore,

, and 847

8 n. 4 (8th Cir. l992) (citing cases in agreement). We agree with

this conclusion and therefore reject appellants' argument.2

C.

Rueda next argues that the district court erroneously admitted

Maldonado's testimony that Rueda "told me he had bought [the .357

magnum revolver] a month prior [to Rueda's arrest] at a flea

market." Before trial, Rueda objected to admission of the

statement, contending first, that he had not made the statement and

second, that, if he had made the statement, he had done so during

a custodial interrogation without having knowingly and voluntarily

waived his right to remain silent. On appeal, Rueda argues that

the district court refused to consider his constitutional argument.

At the suppression hearing, Maldonado testified that he read

to Rueda the contents of a statement of rights card. Agent

Maldonado further testified that Rueda orally waived those rights.

Rueda testified that he did not make the statement and was not

given any Miranda warnings. He also testified that he was "aware

then of [his] right not to say anything."

In its order denying Rueda's motion to suppress, the district

court found that Rueda "made it clear that he fully understood his

right to remain silent." At trial, when objection was made to

admission of the statement, the district court clarified the

difficulty in Rueda's position--if the district court disbelieved

2 In passing, Rueda suggests that the search was unlawful under Texas law. This argument has no merit. See Ellerbee v. State,

(Tex. Crim. App. 1981); Tex Code Crim. Proc. Ann. Art. l8.06(b)(Vernon 1991).

9 Rueda's testimony that he made no statement to Maldonado, it would

have no reason to believe Rueda's fallback position that Maldonado

did not advise him of his right to remain silent.

THE COURT: "[T]he only evidence in this trial today so far about this transaction is from this witness who says, 'I gave him Miranda warnings.'"

MR. ROBERT: ". . . I would like the Court to take judicial notice of the testimony of Mr. Rueda in the suppression hearing."

THE COURT: "If I take judicial notice of that, do I believe part of it and disbelieve the rest; is that what you're saying?"

The district court had to choose whether to believe Rueda's account

of the events at the police station or Maldonado's account of those

events. The court apparently concluded that the separate accounts

were so inconsistent that it could not believe half of one story

and half of the other story. The district court believed

Maldonado's account, not Rueda's.

Despite this finding, Rueda argues that the district court

perceived Rueda's arguments as contradictory and therefore ignored

his constitutional argument. He directs our attention to the

district court's order denying Rueda's motion to suppress, where

the court said that Rueda was "hardly in a position to challenge

the admissibility of the non-existent statement on constitutional

grounds." The district court had already found that Rueda had

voluntarily and knowingly waived his right to remain silent. So we

regard the district court's subsequent statement as an

afterthought, not as a refusal to consider Rueda's constitutional

10 argument. The district court did not err in admitting the

statement.

D.

Sagaribay challenges the sufficiency of the evidence in

support of her convictions. In reviewing this challenge, our task

is to determine whether any reasonable finder of fact could have

found Sagaribay guilty on the evidence presented. In considering

the permissible inferences we must view the evidence in a light

most favorable to the verdict. United States v. Bethley,

(5th Cir. l992).

The offense of possession of heroin with intent to distribute

required proof beyond a reasonable doubt that (l) a conspiracy

existed, (2) Sagaribay knew of the conspiracy, and (3) she

voluntarily joined it. United States v. Mollier,

(5th Cir. l988). The substantive offense of possession with

intent to distribute required proof beyond a reasonable doubt that

Sagaribay (l) knowingly (2) possessed heroin (3) with intent to

distribute. United States v. Molinar-Apodaca,

(5th Cir. 1989).

The evidence showed that apartment 81 was registered in

Sagaribay's name. Several people entered and left Sagaribay's

residence during the three hours before her arrest. When the

officers entered the apartment, Sagaribay was sitting on the floor

immediately next to a plate with heroin, balloons, razor blades,

scissors, and money on it. Detective Avila testified that heroin

is normally packaged in balloons of the type found in the

11 apartment. The search of the living room further revealed a

grocery bag that contained over $6,000 cash and more balloons

packaged with heroin.

The above evidence adequately supports Sagaribay's convictions

for conspiracy to possess heroin with intent to distribute and

possession of heroin with intent to distribute.

III.

For the reasons stated above, we affirm the district court's

judgment.

AFFIRMED.

12