UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4825

HARVEY P. STAPLES,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-97-48)

Submitted: July 14, 1998

Decided: August 6, 1998

Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Theodore N. I. Tondrowski, Richmond, Virginia, for Appellant.
Helen F. Fahey, United States Attorney, John S. Davis, Assistant
United States Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

Harvey P. Staples pled guilty to possession with intent to distribute
crack cocaine,1 and was sentenced to serve 120 months' imprisonment.2
Having reserved the issue in his guilty plea, Staples appeals the dis-
trict court's denial of his suppression motion, arguing that a forced
warrantless entry by police into his motel room violated the Fourth
Amendment and that evidence seized pursuant to a subsequent search
warrant should have been suppressed. He further contends that the
officers failed to comply with the "knock and announce" requirement.
For the following reasons, we find that exigent circumstances justified
the officers' actions and that the district court properly denied Sta-
ples's suppression motion. Accordingly, we affirm the district court's
order and Staples's conviction and sentence.

Officers from the Richmond, Virginia Police Department received
a tip from a reliable confidential informant that a sixty-year-old black
male was selling drugs from Room 315 of the Days Inn on Midlothian
Turnpike. When the investigating officers approached Room 315,
Edward Covington, a black male meeting the physical description
given by the informant, answered the door and gave the officers per-
mission to enter the room. Upon entry, officers observed what
appeared to be cocaine and drug paraphernalia in plain view. Coving-
ton was immediately arrested.

In an effort to cooperate with the officers, Covington consented to
a search of his room. Pursuant to this consensual search, the officers
seized cocaine, drug paraphernalia and packaging materials, cash, and
a loaded .45 semi-automatic pistol. Covington admitted that the drugs
and the gun belonged to him. Covington informed the officers that his
_________________________________________________________________

1 See 18 U.S.C. § 2 (1994); 21 U.S.C. § 841 (1994).
2 On the Government's motion, the district court dismissed the remain-
ing charges: conspiracy to possess with intent to distribute a controlled
substance, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 846, and using
and carrying a firearm during the commission of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c) (1994).

                    2
supplier, Frizzelle Belton, was occupying Rooms 25 and 30 of the
nearby Host Inn.

Covington agreed to participate in a controlled"buy" from Belton.
While the officers made the arrangements, a maintenance man at the
Days Inn phoned Covington, alerting him to police officers in the
motel. Covington later tried to telephone Belton at the Host Inn. The
clerk at the Host Inn relayed Covington's call to its maintenance man,
who told Covington that he would try to locate Belton. Later, the
clerk from the Host Inn called Covington to ask why he was trying
to reach Belton. Covington responded that he wanted to buy addi-
tional drugs from Belton. Covington then explained to the officers
that the clerk at the Host Inn, like other intermediaries, was paid for
warning drug dealers of police presence in the area. Eventually, Cov-
ington and Belton agreed to meet at Covington's motel room for the
drug transaction.

Additional officers were dispatched to the Host Inn to conduct sur-
veillance of Rooms 25 and 30. During the two-hour surveillance, the
officers observed a high volume of pedestrian traffic in and out of
Room 30; Staples was seen frequently going in and out of both
rooms. The officers observed Belton leaving the Host Inn and fol-
lowed him to the Days Inn.

At some point during the transaction with Belton, Covington
alerted the officers waiting in the next room. Upon hearing the pre-
arranged signal, the officers entered Covington's room and arrested
Belton. Pursuant to this arrest, the officers seized eight ounces of
crack cocaine, $270 in cash, a pager, ammunition, and a loaded 9mm
semi-automatic pistol from Belton's person.

The officers then quickly re-assembled for a raid on Rooms 25 and
30 at the Host Inn. The plan, upon the advice of an Assistant Com-
monwealth's Attorney, was to secure both rooms, but not to conduct
a search until warrants had been obtained. The officers forcibly
entered Room 30 first, yelling "Police. Search Warrant." When the
officers similarly entered Room 25, they observed Staples cutting up
a white powdery substance. Following Staples's arrest, and pursuant
to the subsequent search warrant for Room 25, the officers recovered

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four ounces of crack cocaine, cash, a pager, and a loaded handgun,
with additional ammunition.

Staples moved to suppress this evidence, arguing that it was
obtained in violation of the Fourth Amendment. At the conclusion of
the suppression hearing, the district court denied Staples's motion,
ruling that exigent circumstances--the possibility that evidence might
be destroyed coupled with the threatened safety of the investigating
officers--excused the warrantless entry. We agree. Absent clear error,
we will not disturb a district court's factual findings made when rul-
ing upon a motion to suppress.3 We review de novo the ultimate sup-
pression decision.4

One element governing the lawfulness of searches and seizures
under the Fourth Amendment is that police officers must knock and
announce their presence before entering a dwelling to be searched.5
Generally, officers may only make a forcible entry into a dwelling to
execute a search warrant if, after giving notice of their authority and
purpose, they are refused entry or a significant amount of time has
elapsed.6 Failure to comply with the "knock and announce" rule may
render a search illegal; however, unannounced entries are permissible
when there are important countervailing law enforcement interests
such as the safety of the officers or other exigent circumstances, such
as the possibility that drugs or other evidence will be destroyed.7

Exigent circumstances exist when there is probable cause to
believe that contraband is present and an officer reasonably believes
that the evidence might be destroyed before he can return with a warrant.8
We note that the existence of exigent circumstances must be deter-
_________________________________________________________________
3 See United States v. Rusher, 

, 873 (4th Cir. 1992).
4 See 

v. Arkansas, 

, 930 (1995).
6 See United States v. Kennedy, 

, 882 (4th Cir. 1994).
7 See 

States v. Grissett , 

, 778 (4th Cir. 1991) (not-
ing that officers need not produce concrete proof that the occupants of
the room were on the verge of destroying evidence to establish exigent
circumstances).

                    4
mined as of the moment of the officers' warrantless entry into Sta-
ples's motel room and consider the following factors to ascertain the
degree of exigency present:

          (1) the degree of urgency involved and the amount of time
          necessary to obtain a warrant; (2) the officers' reasonable
          belief that the contraband is about to be removed or
          destroyed; (3) the possibility of danger to police guarding
          the site; (4) information indicating the possessors of the con-
          traband are aware that the police are on their trail; and (5)
          the ready destructibility of the contraband.9

It is not necessary for us to consider whether any of the factors listed
is sufficient, standing alone, to justify a warrantless entry. The exi-
gency of the circumstances must be judged in light of all relevant fac-
tors.

Here, the officers were involved in a quickly evolving drug investi-
gation. The record discloses that only approximately seven hours
elapsed from when the officers received the tip from the confidential
informant to Staples's arrest. Based on the ready destructibility of
cocaine, the officers reasonably believed that the evidence could have
been removed or destroyed if they did not act quickly. And since the
two suspects already in custody--Covington and Belton--were
armed when arrested, the very real possibility existed that the suspects
at the Host Inn would also be armed and could respond to the offi-
cers' presence with deadly force, thereby endangering the safety of
the investigating officers. Further, the two motels were not only close
in proximity, but also shared a communications link to warn of police
activity in the area. Presumably, those suspects at the Host Inn could
have attempted to escape if they had been alerted to the police activity
at the Days Inn or if they had become suspicious following Belton's
failure to return from his drug transaction with Covington.

Weighing all of these considerations, we find that the exigency of
the circumstances confronting the officers was sufficient to justify
their warrantless entry into Staples's motel room without strictly com-
_________________________________________________________________
9 United States v. Reed, 

, 642 (4th Cir. 1991) (citing
United States v. Turner, 

, 528 (4th Cir. 1981)).

                    5
plying with the knock and announce rule. Accordingly, we affirm Sta-
ples's conviction and sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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