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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-41014
c/w 02-40231
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
JOSE TRINIDAD VALDEZ, III, also known as Trinito;
SAN JUANITA ALVAREZ VALDEZ,
Defendants - Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas

August 12, 2002
Before KING, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.
PER CURIAM:
The United States appeals from orders entered by the district
court granting motions to suppress filed by each of the
defendants/appellees on the grounds that the state officers
executing a search warrant as to a private residence failed to
comply with the "knock and announce" common law rule.
After considering the record, briefs, and oral argument in
this case, it is clear to us that the district judge conducted an
extensive hearing, that he carefully considered all of the facts

and circumstances associated with this arrest, and that none of his
factual findings is clearly erroneous. Given his factual findings,
we hold that the district judge did not abuse his discretion in
suppressing the evidence. In upholding the district court's
ruling, we emphasize that this case is close, which all the more
requires us to abide by the findings of the factfinder here, who
clearly had a firm grasp of this case. We attach as an addendum to
this opinion the order of the district court suppressing the
evidence. The judgments and rulings of the district court are
accordingly
AFFIRMED.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
UNITED STATES OF AMERICA,
§
§
v.
§
CRIMINAL NO. C-01-59
§
JOSE TRINIDAD VALDEZ,
§
ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS
On May 24, 2000, Criselda Pendleton of the South Texas
Specialized Crimes and Narcotics Task Force petitioned for a search
and arrest warrant subsequently issued Judge Chiuminatto.* The
same day at approximately 10:00 p.m. the warrants were executed at
Defendant's residence located on East Richard Street in Kingsville,
Texas.**
Officer Pendleton, the case agent, tasked a five person entry
team with execution of the warrant. In preparation for execution,
the entry team dressed in ski masks, black "battle dress uniforms,"
*Defendant does not challenge the validity of the warrant but
instead the manner by which it was executed.
**The officers testified that Defendant's neighborhood was
notorious for narcotic activity and that neighboring homes were
occupied by Defendant's relatives.

and combat boots. As the van carrying the entry team traveled East
bound on Richard street, a car with five male youths traveling West
bound on Richard street turned into the driveway of Defendant. The
entry team van followed the car into the driveway and parked. The
team exited the van, rushed toward the door of the house, yelled to
the five youths "get down, police," and lined up single-file at
Defendant's door. Officer McCoy, the first team member in the
line, knocked on the door with his hand and immediately kicked the
door twice intending to open the door. The second kick caused the
door to open. The warrant was executed resulting in the arrest of
Defendant and seizure of approximately 75 grams of cocaine.
Defendant was indicted in a two count indictment for
possession with intent to distribute a controlled substance in
violation of 21 U.S.C. 846, 841(a)(1) and 841 (b)(1)(C). On June
15, 2001, Defendant filed the instant motion to suppress evidence.
On June 28, 2001, the Court heard evidence as to Defendant's
motion, and ordered further briefing as to Defendant's motion. The
Defendant filed a brief; the United States did not.
The common-law knock-and-announce rule that binds state police
officers requires a wait in between the knock and any forced entry.
See United States v. Jones, 133 F.3d 358, 361 (5th Cir. 1998).
Because there was no wait in between the knock and the forced entry
(much less a five second wait), the officers clearly violated the
knock-and-announce rule by such failure. "Generally, a delay of
five-seconds or less after knocking and announcing has been held a

violation of 18 U.S.C. § 3109." Id. (the Court in Jones noted that
§ 3109 cases are informative for purposes of common-law knock-and-
announce rule analysis).
The government failed to provide a convincing case that
pausing some 10 to 20 seconds was not reasonable. The failure to
wait was not mitigated by any exigent circumstance. In order to
justify the entry, the police must have a reasonable suspicion that
knocking and announcing, under the particular circumstances, would
be dangerous and futile, or that it would inhibit the effective
investigation of the crime by, for example, allowing the
destruction of evidence. See United States v. Cantu, 230 F.3d 148,
152 (5th Cir. 2000).
No exigent circumstance existed inside the Defendant's home.
There was no testimony at the suppression hearing that officers had
any reason to believe that there were weapons in Defendant's home,
or that armed and dangerous people were known or even rumored to be
present there. No weapons were seized in the raid of Defendant's
home. There was no testimony that any officer heard movements
inside Defendant's home suggesting that evidence was being
destroyed.
Ms. Pendleton justified the entry of her team's on the grounds
that Defendant was a known drug dealer and that known drug dealers
are prone to certain violent behavior. Such justification has been
clearly rejected by the Fifth Circuit Court of Appeals. See e.g.
United States v. Cantu, 230 F.3d 148, 152 (5th Cir. 2000) (citing

Richards v. Wisconsin, 520 U.S. 385, 394 (1997)).
No exigent circumstance existed outside Defendant's home. At
the suppression hearing, the officers asserted that they chose not
to wait for purposes of ensuring their safety. Many of Defendant's
relatives lived near him (unidentified as to number, name,
residence, and/or complicity). Seven unknown individuals were in
the yard outside of Defendant's house. While expressing a desire
for the cover of being inside Defendant's house, the presence of
the two individuals under a tree in Defendant's yard, and the
presence of the car load of youths in the driveway having been
ordered to the ground without more is no evidence of danger to
anyone especially since an additional 10 or more officers were on
the scene or were immediately arriving.
The Court grants Defendant's Motion to Suppress.
ORDERED this _____ day of ______________________________,
2001.
_________________________________
H.W. HEAD, JR.
UNITED STATES DISTRICT JUDGE