United States v. Hurt
United States v. Hurt
Opinion of the Court
Defendant-appellant Marcus Hurt appeals the district court’s denial of his motion to suppress evidence seized by Jackson, Tennessee police during a search of his residence. After the court denied Hurt’s motion, he entered a conditional guilty plea and was convicted and sentenced for possession with intent to distribute approximately 16.8 grams of cocaine base. For the reasons set forth below, we affirm the district court’s denial of Hurt’s motion to suppress as well as the judgment of conviction.
I.
Tyreece Miller, a police officer with the Jackson police department assigned to the metro narcotics unit, received information from a confidential informant that a man named Mark was selling crack cocaine. The informant, who had made several controlled narcotics purchases for Officer Miller in the past, told him that Mark sold narcotics out of a home at 266 Highview Street in Jackson. On February 20, 2002, Miller wired the informant with an audio transmitter and conducted visual surveillance while the informant entered the home on Highview and purchased crack cocaine. On February 23, 2002, Officer Miller obtained a search warrant from a state circuit court judge for the house at 266 Highview Street.
At approximately 2:35 p.m. on February 26, 2002, Officer Miller and five other Jackson police officers executed the warrant. When the officers arrived at 266 Highview Street, Investigator Mark By-
Investigator Byrum was the first officer to enter the house. Once inside the house, the officers again yelled, “Police! Search Warrant!” The officers found Hurt and Theresa Owens in a bedroom, located approximately fifteen or twenty feet from the front door in the southwest corner of the house. Owens testified that she “had just laid down to take a little nap” in the bedroom when she heard noise. She got up to see what was causing the noise and saw officers running into the residence. The officers then performed a protective sweep of the house and found crack cocaine, marijuana, scales, a weapon, rolling paper, a police scanner, and money.
On April 15, 2002, Hurt was indicted in the United States District Court for the Western District of Tennessee. He was charged with possession with intent to distribute approximately 16.8 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
II.
Hurt appeals the district court’s denial of his motion to suppress evidence seized from his residence by the officers who executed the search warrant. He contends that the district court — in determining whether the officers’ entry comported with constitutional requirements — improperly considered Officer Miller’s testimony about hearing scurrying noises inside of Hurt’s home. According to Hurt, the evidence taken by the officers was seized in violation of the Fourth Amendment because the officers did not comply with the knock and announce rule. Specifically, Hurt claims that the officers violated the knock and announce rule when they did not wait a reasonable amount of time after knocking and announcing their presence before entering his house.
The knock and announce rule “forms a part of the reasonableness inquiry under the Fourth Amendment.”
[Before the police execute a warrant] they must identify themselves as police and indicate that they are present for the purpose of executing a search warrant. ... Once having given the required notice, the officer must wait a reasonable period of time before he may break and enter into the premises to be searched.
United States v. Spikes, 158 F.3d 913, 925 (6th Cir. 1998) (alterations in original). As a result of the rule, “[a]bsent certain exigent circumstances, it is unreasonable under the Fourth Amendment for an officer to enter a dwelling without first knocking and announcing his presence and authority.” United States v. Dice, 200 F.3d 978, 982 (6th Cir. 2000). This court has refused to refused to adopt a per se rule for the length of time officers must wait to enter a home after announcing their presence. United States v. Pennington, 328 F.3d 215, 220 (6th Cir. 2003); see also Spikes, 158 F.3d at 926 (“The Fourth Amendment’s ‘knock and announce’ principle, given its fact-sensitive nature, cannot be distilled into a constitutional stop-watch where a fraction of a second assumes controlling significance.”). Rather, to determine whether officers complied with the knock and announce rule, we consider the facts and circumstances of each individual case in order to decide if officers waited a reasonable amount of time before forcing their way into a residence. See Pinson, 321 F.3d at 566.
In arguing that officers violated the knock and announce rule, Hurt contends that the district court’s finding that Officer Miller heard scurrying inside his house is clearly erroneous. He asserts that Officer Miller’s testimony about scurrying is absurd, given that the occupants of the house were lying in bed shortly before the officers entered. Hurt also claims that Miller would have communicated information about such scurrying to his fellow officers at the scene. Alternatively, Hurt argues that, because Officer Miller did not communicate this information to the other police officers at the scene, the police cannot rely on hearing scurrying sounds to justify their entry into the residence.
With respect to Hurt’s first argument, the district court’s finding that Officer Miller heard scurrying inside Hurt’s house at the time of the execution of the search warrant was not clearly erroneous. Miller’s testimony in and of itself was suf
We also reject Hurt’s argument that, because Miller did not tell the other officers executing the search warrant about the scurrying noise, the entry into Hurt’s home was unreasonable. Even if Hurt is correct that only Officer Miller heard and relied on the scurrying sounds, this fact can nonetheless be considered in determining whether the officers’ entry was reasonable. See, e.g., Pennington, 328 F.3d at 221 (noting that the testimony of the knocking officer that he heard footsteps inside a home supported a finding that officers’ entry into the home was reasonable, even though six to seven Memphis police officers were present to execute the search warrant).
In addition, there are several other factors that indicate the officers’ conduct in this case was reasonable. First, the officers were searching Hurt’s home for drugs after a confidential informant had made a controlled purchase of crack cocaine at that location. We have noted that “the presence of drugs in the place to be searched, while not a conclusive factor, lessens the length of time law enforcement must ordinarily wait outside before entering a residence.” Spikes, 158 F.3d at 926; see also United States v. Johnson, No. 98-3183, 2000 WL 712385, at *5 (6th Cir. May 24, 2000) (upholding officers’ five second wait between announcing their presence and entering a home when a controlled buy of drugs had occurred at the home the prior day in part because police could “reasonably assume persons with access to working plumbing facilities will try to destroy this [drug] evidence”).
Second, the police executed the search warrant at Hurt’s house in the middle of the day. As this court explained in Spikes,
[t]he amount of time officers need to wait before entering a home necessarily depends on how much time it would take for a person in the house to open the door. When the police execute a warrant in the dead of night or have some other reason to believe that a prompt response from the homeowner would be unlikely, the length of time the officers should wait increases.... Correspondingly, when officers execute a warrant in the middle of the day or have requested admittance from the occupant face-to-face, the length of time the officers must tarry outside diminishes.
158 F.3d at 927. In the instant case, the officers executed the warrant at 2:35 p.m., and the record contains no indication, nor has Hurt argued, that the officers should have believed that “a prompt response from the homeowner would be unlikely.” Id.; see also Pinson, 321 F.3d at 567 (finding that “when officers executed the warrant at 3:05 p.m., it was reasonable to assume that someone would have been awake and responsive”).
Therefore, given that Officer Miller heard a scurrying sound inside of Hurt’s house after the police announced their presence, that there were drugs in the place to be searched, and that the warrant was executed in the middle of the day, we conclude that the time between the officers’ “knock and announce” and their entry into Hurt’s residence satisfied the rea
III.
Based upon the foregoing reasons, we affirm the decision of the district court to deny Hurt’s motion to suppress and Hurt’s conviction.
. Hurt's indictment also charged him with possession of a Fabico .32 caliber revolver, in violation of 18 U.S.C. § 924(c). The government eventually dismissed this charge.
. Hurt also argued that probable cause did not exist for the issuance of the search warrant of his home. The district court found that probable cause existed, and Hurt does not raise this issue again on appeal.
. Because this case involves the execution of a state search warrant that was executed by state officials, we do not need to consider the codification of the knock and announce rule at 18 U.S.C. § 3109. See United States v. Gatewood, 60 F.3d 248, 249 (6th Cir. 1995) (noting that 18 U.S.C. § 3109 regulates only federal officers and does not apply when state officers, acting without federal involvement, seize evidence that is later offered in a federal prosecution).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.