It must be borne in mind that the primary purpose of the constitutional guarantees is to prevent unreasonable invasions of the security of the people in their persons, houses, papers, and effects, and when an officer has reasonable cause to enter a dwelling to make an arrest and as an incident to that arrest is authorized to make a reasonable search, his entry and his search are not unreasonable. Suspects have no constitutional right to destroy or dispose of evidence, and no basic constitutional guarantees are violated because an officer succeeds in getting to a place where he is entitled to be more quickly than he would, had he complied with section 844. Moreover, since the demand and explanation requirements of section 844 are a codification of the common law, they may reasonably be interpreted as limited by the common law rules that compliance is not required if the officer's peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose. (Citations omitted). Without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide these questions in the first instance.

Echoing those observations many years later, this court wrote, in United States v. Manning, 448 F.2d 992, 1000-01 (2d Cir.), cert. denied, 404 U.S. 995, 92 S. Ct. 541, 30 L. Ed. 2d 548 (1971) (en banc):

If we were writing on a clean slate, it would seem that when an officer knocks on the door of an apartment occupied by an experienced narcotics violator, which is reasonably believed by him to be so, and clearly identifies himself as a federal agent, there is sufficient compliance with the spirit of the statute [Sec. 3109] even if perhaps not with the strict letter. A knock is at least a request for entry, and a trafficker in narcotics who has been told that this is being made by a Federal agent can have no real doubt that the purpose is arrest, search or both, or that, if the request is not honored, something more will speedily follow.1

See also United States v. Artieri, 491 F.2d 440 (2d Cir.), cert. denied, 417 U.S. 949, 94 S. Ct. 3076, 41 L. Ed. 2d 670 (1974); Rodriguez v. Butler, 536 F.2d 982 (2d Cir.), cert. denied, 429 U.S. 943, 97 S. Ct. 362, 50 L. Ed. 2d 313 (1976); United States v. Bonner, 874 F.2d 822 (D.C.Cir.1989).

The prescriptive prerequisites stated by the dissent, (citing United States v. Spinelli, 848 F.2d 26, 29 (2d Cir.1988)) as warranting a recognition of exigent circumstances are unduly restrictive. Not accounted for are the factors recited in United States v. Gordils and United States v. MacDonald, supra, none of which are engaged by the excerpted portions of the district court's findings listed in the dissent. Our ruling does not adopt the principle that the execution of a warrant in search of narcotics in premises where an occupant is believed to be armed and has a known criminal record of violent offenses, need not comply with Sec. 3109. We simply hold that the totality of the circumstances within which the findings of the district court were made and which do engage the exigent circumstance factors of MacDonald and Gordils were not clearly erroneous. The cases upon which the dissent relies could be cited in support of that holding. For example, in United States v. Nabors, 901 F.2d 1351, 1354 (6th Cir.), cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 154 (1990), the Court upheld a search which did not comply with Sec. 3109 "when there were two exigent circumstance grounds; first, the defendants were believed to be armed and dangerous; second, the officers had information that the defendants had substantial quantities of drugs which could be easily disposed of." In United States v. Lucht, 18 F.3d 541 (8th Cir.), cert. denied, --- U.S. ----, 115 S. Ct. 363, 130 L. Ed. 2d 316 (1994), the court wrote, at p. 549: "Exigent circumstances will excuse noncompliance with the knock and announce requirement when the officers, 'after considering the particular facts regarding the premises to be searched and the circumstances surrounding the execution of the warrant,' reasonably believe there is an urgent need to force entry. United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1989); see United States v. Spinelli, 848 F.2d 26, 29 (2d Cir.1988). The need to force entry may result from danger to the safety of the entering officers or from the imminent destruction of evidence. See Bonner, 874 F.2d at 826. The degree of exigency required to justify a departure from strict compliance with Section 3109 varies with the degree of the departure."

The defendant contends that he was improperly adjudicated an armed career criminal because the government failed to prove that he had the requisite number of criminal convictions.

The defendant was convicted of, among other offenses, a violation of 18 U.S.C. Sec. 922(g) which makes it unlawful for anyone who has been convicted of a crime punishable by imprisonment for more than one year to possess any firearms. 18 U.S.C. Sec. 924(e) provides that if a person violates Sec. 922(g) and has three previous convictions for a violent felony or serious drug offense, or both, committed on different occasions, he shall be fined up to $25,000 and imprisoned for not less than 15 years. U.S.S.G. Sec. 4B1.4 provides that a defendant who is subject to an enhanced sentence under Sec. 924(e) is an armed career criminal and punishable more severely.

Brown was sentenced to imprisonment for 322 months arrived at as follows: 262 months concurrent on Counts 1-7 and 60 months consecutive to Counts 1-7 on Count 8. That sentence was based upon the PSR finding that the defendant was an armed career criminal in accordance with Sec. 924(e) and that pursuant to U.S.S.G. Sec. 4B1.4(b) and a criminal history of category of VI his offense level was 34, yielding a guideline range of 262 to 327 months on each count. In addition, 18 U.S.C. Sec. 924(c)(1) required the imposition of a consecutive term of 5 years.

As to the armed career criminal enhancement, the PSR recounted a criminal history that included three violent felony convictions in New York: (1) attempted robbery-3rd, in 1970; (2) robbery in 1972; and (3) assault-2nd in 1987.

At sentencing, the defendant objected to the PSR's finding that he had more than two prior violent felonies which made him an armed career criminal. He contended that the government had not sustained its burden of proof as to the 1970 conviction of attempted robbery 3rd relying only, as it did, not on a certified copy of his conviction, but on a presentence report prepared in 1982 by the New York City Department of Probation in connection with another of the defendant's criminal convictions. That report lists the 1970 conviction as "ATT. Robbery III." In a narrative description of Brown's criminal history, that report states that "[h]e has four misdemeanor convictions and two prior felony convictions from this court for Attempted Robbery III, for which he was sentenced to One Year, New York City Penitentiary in 1970 and for Robbery and Grand Larceny for which he was sentenced to five to fifteen years and two to six years (concurrent) in January of 1973." A report prepared by the Federal Bureau of Investigation's Identification Division also listed Brown's 1970 conviction as "Att. Rob.III." That document was also before the court at sentencing.

It was not disputed that the crime of Attempted Robbery 3rd is a crime punishable under Secs. 70, 110.05, 160.05 of the New York Penal Law by imprisonment up to four years and is a "violent felony" as defined in U.S.S.G. Sec. 4B1.4 and 18 U.S.C. Sec. 924(e)(2)(B). The facts underlying the 1970 conviction as recounted in the presentence report were not disputed by Brown, namely, that a woman was knocked down and robbed and that he was initially charged with the more serious offense of Robbery-2nd.

The issue posed by the defendant by clear implication, if not explicitly, is the propriety of the district court's reliance upon the presentence report of the New York City Department of Probation and the information supplied by the Identification Division of the F.B.I. in concluding that Brown was an armed career criminal. In this regard, it is important to note that Rule 1101(d)(3), Fed.R.Ev. provides that the rules of evidence do not apply to sentencing proceedings. 18 U.S.C. Sec. 3661 provides that "[n]o limitation shall be placed on the information concerning the background, character and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." And finally, U.S.S.G. Sec. 6A1.3 provides in relevant part that "[i]n resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy."

Brown correctly asserts that the government bears the burden of establishing (by a preponderance of the evidence), the existence of prior violent felony convictions when seeking a sentence enhancement pursuant to U.S.C. Sec. 924(e). It is clear that the government may discharge that burden by any relevant evidence having sufficient indicia of reliability. The 1982 presentence report prepared by a New York probation officer based upon prior New York convictions for use by a New York court in imposing sentence upon Brown may similarly be used by a federal court in Vermont with justifiable confidence in its reliability. The fact that a certified copy of Brown's 1970 conviction may have been more desirable, does not detract from the reliability of the information before the court or from its justifiable reliance upon that information. United States v. Paleo, 967 F.2d 7, 13 (1st Cir.1992) ("The federal sentencing court will normally accept as valid a properly evidenced past conviction. Unless it reveals unconstitutionality on its face, a certified copy of a court record of conviction or a presentence report's account of a past conviction will normally prove the fact of a valid conviction") (emphasis added). In a subsequent opinion reported in 9 F.3d 988 (1992) the court withdrew its prior opinion for reasons which did not implicate its previous observation on the use of presentence reports; United States v. Harris, 964 F.2d 1234 (1st Cir.1992). In United States v. Bregnard, 951 F.2d 457 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S. Ct. 2939, 119 L. Ed. 2d 564 (1992), a case virtually identical with this one, the court reached the same result. 18 U.S.C. Sec. 3742(e) directs the court of appeals to "... accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts." The conclusion of the district court, based as it was upon the information before it as outlined above, was not clearly erroneous and its application of the Guidelines to the facts shall be accepted and given the deference it is due.

The characterization of Brown's undisputed conviction of Attempted Robbery III as a misdemeanor or a felony aside, the reliance upon that conviction to enhance his sentence was otherwise correct. 18 U.S.C. Sec. 924(e)(2)(B)(i) defines the term "violent felony" as meaning "any crime punishable by imprisonment for a term exceeding one year ... that has as an element the use, attempted use, or threatened use of physical force against the person of another." The generic meaning of "robbery" is reflected in the statutory definitions of that crime. For example, N.Y.Penal Law Sec. 160.00 defines robbery as "forcible stealing" and that "a person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person...." In 18 U.S.C. Sec. 16 the term "crime of violence" is defined as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." It is readily apparent that the definition in Sec. 924(e)(2)(B)(i) was derived from Sec. 16. In 18 U.S.C. Sec. 1951(b)(1) the term "robbery" is defined as meaning the "unlawful taking or obtaining of personal property from the person of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property...."

In Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), the Court held that "the only plausible interpretation of Sec. 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." 495 U.S. at 602, 110 S.Ct. at 2160. An examination of the fact of conviction of Attempted Robbery III and the statutory definition of that prior offense plainly reveals that it is a "violent felony" under Sec. 924(e)(2)(B)(i) and was a correctly regarded predicate offense for the purpose of enhancing Brown's sentence. There is no "indication that Congress ever abandoned its general approach in designating predicate offenses of using uniform, categorical definitions to capture all offenses of a certain level of seriousness that involve violence or an inherent risk thereof and that are likely to be committed by career offenders, regardless of technical definitions and labels under state law." 495 U.S. at 590, 110 S.Ct. at 2154.

Because we affirm the sentence on the basis of U.S.S.G. Sec. 4B1.4, we need not reach Brown's challenge to the alternative sentence justification on the basis of U.S.S.G. Sec. 4B1.1.

I concur in Judge Glasser's opinion and especially in his conclusion that exigent circumstances justified bypassing any applicable knock-and-announce requirement. The officers' information showed that the occupants of the home included professional drug dealers, probably armed, one of whom had a criminal record and had gone with an armed man to collect a drug debt. This gave adequate reason for the officers to fear for their safety if they forfeited the element of surprise by knocking, announcing their presence, and requesting admittance. The likelihood that such dealers could in seconds flush drug evidence down a toilet furnished additional justification.

I write separately, however, to note my disagreement with the passage where Judge Glasser, in dictum, discusses his view that, in the interest of uniformity in federal court rulings, a statute regulating the conduct of federal officers performing a search should be held retrospectively to cover state officers as well if evidence uncovered by their search is later offered in a federal criminal trial. In my opinion, this suggested rule is supported by neither reason nor authority, and, if adopted, would cause serious problems in the administration of justice.

Judge Glasser cites several cases which, to my mind, do not support his conclusion because they address different problems. United States v. Pforzheimer, 826 F.2d 200 (2d Cir.1987), was a federal narcotics prosecution in which the government offered evidence seized by Vermont state officers using procedures which the defendant claimed violated Vermont law, although it was clear the officers did not violate federal law. The defendants argued that the alleged violation of Vermont law should cause exclusion of the evidence from the federal prosecution. Id. at 202. This court rejected the argument, holding that only the requirements of federal law needed to be satisfied to make the evidence admissible, and that more stringent requirements of state law would not be applied to bar admission in a federal prosecution. Id. at 203-04. Although it is true that the opinion expresses this conclusion by using phrases such as "federal law should apply to this federal criminal prosecution," id. at 204, what was really meant was that only the applicable federal law requirements needed to be satisfied, not also the state law requirements. That holding in no way supports the proposition that a federal statute governing the conduct of federal officers, and not state officers, should be held to cover the state officers as well should the fruits of their search be offered in federal court.

Similarly in United States v. Smith, 9 F.3d 1007 (2d Cir.1993), the defendant argued that violations of state law should result in suppression of the seized evidence offered in a federal prosecution, even though the seizure comported with federal requirements. We refused to consider whether state law had been violated. We ruled, citing Pforzheimer, that violations of state law by state officers would not result in exclusion of evidence from a federal trial. Id. at 1014.

Closer to the mark is United States v. Turner, 558 F.2d 46 (2d Cir.1977), which applied Fed.R.Crim.P. 41 to state officers participating in a drug investigation. In this case, however, it was by reason of the participation of federal officers in the search--not by reason of the subsequent offer of the evidence in federal court--that the federal rule was deemed applicable. 558 F.2d at 49; see also United States v. Burke, 517 F.2d 377 (2d Cir.1977).

Thus, the cases cited in Judge Glasser's opinion do not indicate that a federal statute governing the execution of a search by federal officers becomes applicable to state officers if the evidence they seize is later offered in a federal prosecution.

I recognize that the Supreme Court is presently considering whether the knock-and-announce rule dictated by Sec. 3109 is also mandated by the Fourth Amendment's reasonableness requirement. Wilson v. State, 317 Ark. 548, 878 S.W.2d 755, 758 (rejecting claim that Sec. 3109 is required by the Fourth Amendment), cert. granted, --- U.S. ----, 115 S. Ct. 571, 130 L. Ed. 2d 488 (1994); see Ayeni v. Mottola, 35 F.3d 680, 687 n. 9 (2d Cir.1994) (Section 3109 coincides with the requirements of the Fourth Amendment); Rivera v. United States, 928 F.2d 592, 606 (2d Cir.1991) (Fourth Amendment requires officers to provide notice of identity and imminent entry); but see United States v. Sagaribay, 982 F.2d 906, 909-10 (5th Cir.) (Fourth Amendment does not incorporate Sec. 3109), cert. denied, --- U.S. ----, 114 S. Ct. 160, 126 L. Ed. 2d 120 (1993). If the Supreme Court decides that Sec. 3109 is constitutionally required, then it will, of course, apply regardless of whether state or federal officers conduct the search, and regardless whether the evidence is ultimately offered in state or federal court.

Nor do I dispute, even in the absence of a constitutional mandate, that there are factors present in this case which make it reasonable to apply the dictates of Sec. 3109. Here we have: (i) an investigation conducted in part by federal officers; (ii) a warrant issued on the basis of criminal acts covered by the federal criminal law; (iii) extensive participation in the search by federal officers (five federal officers were present); and (iv) the evidence presented in federal court. This combination of factors provides ample reason for finding Sec. 3109 applicable.

Judge Glasser's suggested rule, however, relies solely on the eventual offer of seized evidence in federal court to make Sec. 3109 retroactively applicable to a state search. There are good reasons why Sec. 3109 should not be interpreted in the manner Judge Glasser suggests. By his reasoning, even if the investigation and search had been 100% state operations, seeking evidence of a state crime, and a state prosecution had first been successfully conducted on the basis of the seized evidence, the eventual offer in a subsequent federal trial of a piece of evidence gathered in the search would retroactively make Sec. 3109 applicable and require suppression.

Were we to adopt such an interpretation of federal laws, it would cause confusion, surprise and illogical results, unjustifiably preventing successful prosecution of criminals. State officers presumably take pains to conform their conduct to the constitutional and state law rules that govern them. When they conduct a search under a state warrant covering a state offense, they have no way of guessing that the search may reveal evidence of unsuspected federal crimes. If it does, the later prosecution of those crimes in federal court will retrospectively bring to bear an unfamiliar set of statutes and rules apparently covering different officers. The fruits of the search will be suppressed from the federal prosecution although the state officers at the time the search was conducted had no reason to believe they were doing anything wrong. I cannot agree that this would be a desirable (or intended) interpretation of our federal statutes and rules, even if it led to greater uniformity of rulings in federal court. By allowing the guilty to go free without deterring police misconduct, it would bring about all the harms of a suppression rule without any of the benefits.

I respectfully dissent. In my view, the denial of defendant's motion to suppress was error because the district court's conclusions that the law enforcement officers' break-in either was in compliance with the so-called "knock and announce" statute or was a violation justified by exigent circumstances are contradicted by the court's findings of fact.

The "knock and announce" statute provides that a person authorized to execute a federal search warrant may break into the targeted dwelling "if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant." 18 U.S.C. Sec. 3109 (1988). The language of this section indicates that, absent the need for "liberat[ion]" of one executing the warrant, the break-in is to be preceded by notice and a refusal of admittance; thus, absent compelling circumstances, there must be some pause to allow the occupants an opportunity to admit the officers without having the door broken in. See, e.g., United States v. Mendonsa, 989 F.2d 366, 370 (9th Cir.1993) ("absent exigency, there must be explicit refusal or lapse of a significant amount of time before officers may forcibly enter the premises"); United States v. Marts, 986 F.2d 1216, 1217-18 (8th Cir.1993) (lapse of less than five seconds held not sufficient to infer refusal of admittance necessary to comply with Sec. 3109); United States v. Nabors, 901 F.2d 1351, 1355 (6th Cir.) ("[c]ases in which officers make a forced entry seconds after announcing their authority and purpose" must be "carefully scrutinized ... to determine whether there is compliance with Sec. 3109"), cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 154 (1990). Section 3109 reflects " 'the reverence of the law for the individual's right of privacy in his house,' " a reverence that is " 'deeply rooted in our heritage and should not be given grudging application.' " Sabbath v. United States, 391 U.S. 585, 589, 88 S. Ct. 1755, 1758, 20 L. Ed. 2d 828 (1968) (quoting Miller v. United States, 357 U.S. 301, 313, 78 S. Ct. 1190, 1198, 2 L. Ed. 2d 1332 (1958)).

Evidence seized following a break-in that failed to comply with Sec. 3109 need not be suppressed if the noncompliance was excused by exigent circumstances. See, e.g., Sabbath v. United States, 391 U.S. at 591 & n. 8, 88 S. Ct. at 1759 & n. 8. However, exigent circumstances may excuse noncompliance with the knock-and-announce requirement only if the officers believed that there was an emergency situation, and their belief was objectively reasonable. See, e.g., United States v. Spinelli, 848 F.2d 26, 29 (2d Cir.1988); United States v. Mendonsa, 989 F.2d at 370 ("specific inferences of exigency" are required); see generally United States v. Lucht 18 F.3d 541, 548-51 (8th Cir.1994).

In the present case, the district court concluded that because the drugs for which the officers were to search were capable of destruction, and because the officers knew that one of the anticipated occupants, Timothy Ellison, had a record for arrests involving violent crimes and had recently sought to collect a drug debt using a gun, the "totality of the circumstances" created "an emergency situation," or "sufficient exigent circumstances," justifying the officers in breaking into the premises simultaneously with their knock at the door. (Hearing Transcript, November 25, 1992 ("Tr."), at 149.) The court correctly noted that "the mere fact of execution of a warrant concerning the search for drugs is not sufficient to justify any sort of a departure from the knock and announce statute." (Tr. 145-46.) It nonetheless concluded that there was "a compliance with the knock and announce rule, which was so compressed in time that probably the people couldn't truly respond" (Tr. 149), and that the "simultaneous[ ] break-in ... [wa]s justified by the subjective knowledge that the officers had and their objective belief that there was a potential danger to them and a risk that the evidence would be destroyed" (Tr. 150). The court's exigent-circumstances and objectivereasonableness conclusions, however, did not comport with its findings of fact.

The district court made the following factual findings with respect to this break-in, which occurred at 6 a.m.:

--"the break-in was virtually simultaneous with the announcement" (Tr. 149);

--because of that simultaneity, "the people couldn't truly respond, certainly to the announcement" (id.);

--indeed, "it may well have been that the knock did not wake anybody in the apartment" (id.);

--there was "no evidence in this case that the officers had any reason to believe that the persons within knew of their authority or purpose" (Tr. 147);

--"I do not believe that [the officers] could see inside the apartment or that the apartment was lighted" (id.);

--"I specifically do not find that the officers could see into the apartment or that they had any facts when they were about to enter the apartment that would suggest that the persons within were engaged in any activity to destroy evidence" (Tr. 145);

--"there isn't any evidence to suggest that the persons within were in any sort of peril" (Tr. 147); and

--"there is no evidence that suggests that at the time when the officers were outside of the apartment, that there was any activity going on inside of it that justified a belief that there was an escape or the destruction of evidence" (Tr. 148).

To the extent that the court ruled that the officers had complied with Sec. 3109, its conclusion is contradicted by its findings, inter alia, that the break-in was simultaneous with the knocking, rather than "after" notice and refusal of entry, and that the break-in was not needed to "liberate" anyone.

To the extent that the court ruled that exigent circumstances justified noncompliance with Sec. 3109, its conclusion is contradicted by its findings that the officers (a) could not see into the apartment, (b) could not see any lights, (c) had no reason to believe that the persons within knew of their authority or purpose, (d) had no reason to believe that the persons within were attempting to escape, and (e) had no reason to believe that the persons within were engaged in any activity to destroy evidence.

In the face of its explicit findings, the court's ruling adopts a principle that when officers executing a search warrant for narcotics expect one of the persons inside the targeted dwelling to be one who likely possesses a gun and has a record of arrests involving violent crimes, they are entitled to break in simultaneously with the announcement of their presence and authority. Though I do not suggest that compliance with Sec. 3109 required the officers to do more than pause briefly to see whether the occupants would promptly admit them, I do not agree that the section authorized simultaneous knocking and breaking in; and I do not agree that the circumstances found here warranted disregard of the requirement that the officers pause between their announcement and their breaking in.

Accordingly, I conclude that the suppression motion should have been granted and that defendant should have a new trial.