United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2001 Decided November 27, 2001

No. 00-3105

United States of America,
Appellee

v.

Jose Geraldo, a/k/a Fifio,
Appellant

Appeal from the United States District Court
for the District of Columbia
(98cr00391-02)

Stephen C. Leckar, appointed by the court, argued the
cause and filed the briefs for appellant.

Jeffrey W. Bellin, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Thomas J. Tour-
ish, Jr. and Arvind Lal, Assistant U.S. Attorneys.


Before: Henderson, Randolph, and Rogers, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: Searches carried out by federal
agents at two District of Columbia residences--one at 1430
Newton Street, the other at 1823 Newton Street--led to the
arrest, indictment and conviction of Jose Geraldo. In this
appeal Geraldo claims the 1430 Newton Street search violated
the federal knock and announce statute, 18 U.S.C. s 3109,
and exceeded the scope of the search warrant. As to 1823
Newton Street, he maintains that his trial counsel was consti-
tutionally ineffective because he did not assert Geraldo's
privacy interest in the premises, thus disabling him from
challenging the search of those premises.

I.

We begin with the Sixth Amendment ineffective counsel
claim. On November 12, 1998, FBI agents executed a search
warrant at Apartment 12 at 1823 Newton Street. A special
agent's affidavit supporting the search warrant gave details of
the FBI's investigation of a conspiracy to distribute cocaine
involving Geraldo, Luis Elias Ortiz and Jesus Antonio Leo.
The affidavit concentrated on three transactions. The first
occurred on August 3, 1998, when Ortiz and Geraldo sold
$1,600 worth of cocaine to two informants. On that day, the
informants met Geraldo at 1430 Newton Street. Geraldo told
one of the informants that he had to go to another location
about 15 minutes away to cook the cocaine, and he asked
them to return in about 45 minutes. FBI agents followed
Geraldo as he walked to 1823 Newton and back to 1430
Newton. Upon his return to 1430 Newton, Geraldo was seen
pulling a bag of crack cocaine out of his pants as he climbed
the stairs. Geraldo then gave the cocaine to Ortiz, who sold
it to one of the informants in the first floor bathroom at 1430
Newton.

The second sale took place on September 14, 1998, when
Geraldo and Leo sold 44.4 grams of cocaine base to the same
two informants for $1,200 in the kitchen at 1430 Newton.


According to the affidavit, prior to the sale one of the
informants saw Leo cooking the cocaine into a cocaine base in
the kitchen on the second floor at 1430 Newton and saw
Geraldo weigh the crack on a scale in the kitchen.

The third sale occurred on October 5, 1998. The affidavit
stated that on this date, Geraldo sold an informant approxi-
mately 60 grams of cocaine base for $1,580 in the hallway
inside the main entrance at 1430 Newton.

The affidavit also provided information about telephone
calls linking 1430 and 1823 Newton Street. A pen register
covering a telephone number at 1430 Newton Street disclosed
more than 60 calls between that number and a number
subscribed to Apartment 12 at 1823 Newton Street.

Based on this information, a magistrate issued a search
warrant for both 1430 Newton Street and Apartment 12 at
1823 Newton Street. The agents also obtained arrest war-
rants for several individuals, including Geraldo. When agents
executed the search warrant at 1823 Newton Street on No-
vember 12, 1998, they found 69.3 grams of crack cocaine, 242
grams of powder cocaine in a padlocked closet, four kilogram
wrappers used for packaging cocaine, and a pot recently used
to cook crack cocaine.

Geraldo, having been charged with a variety of narcotics-
related crimes, filed a motion to suppress the evidence ob-
tained at 1823 Newton. The district court denied the motion
on the ground that Geraldo had not even suggested that he
possessed a reasonable expectation of privacy in 1823 New-
ton, Apartment 12. See Memorandum Order at 4; Rakas v.
Illinois, 439 U.S. 128 (1978).

Geraldo now complains that his trial counsel provided
ineffective assistance in failing to prove his privacy interest in
Apartment 12 at 1823 Newton, an interest Geraldo thinks
could easily have been established. He points to transcripts of
a hearing on a motion to suppress by one of his co-
defendants, Eligio Pool, and transcripts from the severed trial
of Pool. The transcripts indicate the following: Pool resided
at Apartment 12; Geraldo paid him to use the closet at 1823
Newton to store drugs; Geraldo put a padlock on the closet;


and Geraldo had a key to enter both Apartment 12 and the
closet within the apartment.

When a defendant first raises a Sixth Amendment claim of
ineffective counsel on direct appeal of his conviction, other
courts of appeals usually refuse to adjudicate it, leaving open
to the defendant the alternative of bringing a collateral
attack. See Wayne R. LaFave, Jerold H. Israel & Nancy J.
King, Criminal Procedure s 11.7(e) at 631 (2d ed. 1999); see
also United States v. Petty, 1 F.3d 695, 696 (8th Cir. 1993);
United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995);
United States v. Quintero-Barraza, 78 F.3d 1344, 1347 (9th
Cir.), cert. denied, 519 U.S. 848 (1996). Our practice has been
different. We too generally decline to resolve the issue on
direct appeal, but rather than requiring the defendant to
raise the claim collaterally, we remand to the district court
for an evidentiary hearing. See United States v. Fennell, 53
F.3d 1296, 1304 (D.C. Cir. 1995). Two exceptions to our
general practice have arisen: when the trial record conclu-
sively shows that the defendant is entitled to no relief; and
when the trial record conclusively shows the contrary. See
id.; United States v. Richardson, 167 F.3d 621, 626 (D.C.
Cir.), cert. denied, 528 U.S. 895 (1999); United States v.
Weathers, 186 F.3d 948, 958 (D.C. Cir. 1999), cert. denied, 529
U.S. 1005 (2000). We do not remand Geraldo's claim because
it is clear that he cannot prevail.

The defendant bears the burden of proving that his lawyer
made errors "so serious that counsel was not functioning as
the 'counsel' guaranteed by the Sixth Amendment" and that
counsel's deficient performance was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984). Courts "must
indulge in a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance."
Id. at 689. Geraldo cannot overcome this "strong presump-
tion."

Sound tactical considerations weighed in favor of counsel's
decision not to assert Geraldo's privacy interest in Apartment
12 at 1823 Newton. If Geraldo had testified at the suppres-
sion hearing about his interest in the premises, his testimony


could have been used to impeach him at trial if he took the
stand. See, e.g., United States v. Jaswal, 47 F.3d 539, 543 (2d
Cir. 1995); United States v. Beltran-Gutierrez, 19 F.3d 1287,
1290-91 (9th Cir. 1994). And he would have gained nothing
because his attack on the search would have been frivolous.
See Strickland, 466 U.S. at 694.

Under United States v. Leon, 468 U.S. 897, 926 (1984),
evidence will not be suppressed when a police officer reason-
ably relies in good faith on a warrant issued by a magistrate,
even if the warrant is later determined to be lacking in
probable cause. The affidavit underlying the search warrant
for 1823 Newton did not so clearly lack indicia of probable
cause--indeed, it clearly showed probable cause--to make it
objectively unreasonable for the agents to rely on it. Preju-
dice cannot result from an attorney's failure to pursue a
frivolous claim. Geraldo's suppression motion amounted to
nothing more, and establishing his privacy interest ran the
risk of damaging his usefulness as a trial witness.

II.

Geraldo's claims relating to the search of 1430 Newton
Street are more serious. On November 12, 1998--the same
day the FBI executed the search warrant at 1823 Newton--
agents sent two informants into 1430 Newton to place a
$3,000 order for 125 grams of cocaine. About five to ten
minutes after the informants placed their order and left the
residence (ostensibly to later return with payment for the
drugs), Geraldo left the townhouse. Agents followed Geraldo,
arrested him and seized several keys in his possession.

A SWAT team then moved in on 1430 Newton pursuant to
a search warrant: one group entered through the basement,
another through the front door. At the basement level, an
FBI agent knocked on the door, yelled "FBI, Search War-
rant," and simultaneously used a battering ram to break the
door before throwing a "flash bang" device into the home. (A
"flash bang" is a cylindrical pyrotechnic device that creates a
loud bang when it goes off, diverting the attention of those
nearby.) At the main entrance, agents used Geraldo's keys


to enter. One of the agents yelled "FBI, Search Warrant" as
the front door was swinging open, and a flash bang device
was then thrown through the open door.

Before entering 1430 Newton, the agents had limited infor-
mation about the interior of the townhouse. Informants had
told them that it was a large home in which several people
lived, each with access to the common areas, as opposed to a
multi-unit apartment building with distinct apartments inside.
In addition, informants had told agents that there were no
numbers on individual doors inside and that the doors on the
second floor of the townhouse did not have separate locks.

Once inside 1430 Newton Street, the agents learned that
the house did in fact consist of several individual rooms with
locks on the doors. Agents entered all bedrooms, including
those that were locked, in order to locate any persons hiding
within the residence. After locating four persons and speak-
ing with them about which rooms belonged to the persons
named in the warrant, the agents limited their search to
common areas and the rooms of persons, including Geraldo,
named in arrest warrants the agents had obtained.

On the second floor, agents searched the kitchen because
that was an area where a controlled buy had taken place.
They also searched Geraldo's bedroom, as well as a room next
to Geraldo's believed to belong to another man suspected of
drug sales. While searching Geraldo's bedroom, the agents
found a razorblade with cocaine residue hidden between the
mattress and boxsprings of the bed, as well as a key to a
padlock, a passport, and other documents. The key was later
determined to fit a lock on the closet at 1823 Newton Street
containing drugs.

Geraldo's motion to suppress this evidence was on the
grounds that the agents failed to comply with the federal
knock and announce statute and exceeded the scope of the
search warrant. After an evidentiary hearing, the district
court denied the motion, finding that exigent circumstances
warranted the agents' entrance into the home without fully
complying with the federal knock and announce statute and
that the scope of the agents' search was reasonable. In


executing a federal search warrant, an officer "may break
open any outer or inner door or window of a house ... if,
after notice of his authority and purpose, he is refused
admittance...." 18 U.S.C. s 3109. In this case, the
agents--acting pursuant to a predetermined entry plan--did
not wait for a refusal. They announced their presence as
they simultaneously entered the home. The question there-
fore is not whether they complied with s 3109, but rather
whether exigent circumstances excused compliance.

We put to one side the fact that Geraldo was not at 1430
Newton when the search occurred. Although the Ninth
Circuit has held that the defendant must be present in order
to enjoy the protection of the knock and announce statute, see
Mena v. Simi Valley, 226 F.3d 1031, 1035 n.2 (9th Cir. 2000);
United States v. Valencia-Roldan, 893 F.2d 1080, 1081 n.1
(9th Cir.), cert. denied, 495 U.S. 935 (1990), and the First
Circuit has expressed "serious doubt" whether an absentee
owner may raise a s 3109 claim, United States v. DeLutis,
722 F.2d 902, 908 (1st Cir. 1983), the issue is unnecessary for
us to decide.

The knock and announce procedure need not be followed if
officers have a "reasonable suspicion that knocking and an-
nouncing their presence, under the particular circumstances,
would be dangerous or futile, or that it would inhibit the
effective investigation of the crime by, for example, allowing
the destruction of evidence." United States v. Ramirez, 523
U.S. 65, 70 (1998). Some courts hold that the presence of a
firearm may not in itself create an exigency sufficient to
excuse compliance with the statute. See, e.g., United States
v. Moore, 91 F.3d 96, 97 (10th Cir. 1996); United States v.
Bates, 84 F.3d 790, 795 (6th Cir. 1996). Whatever the merits
of this position, there is agreement that the presence of a
firearm coupled with information such as a suspect's violent
tendencies, criminal record, or specific violent threats is
enough to create an exigency because the weapon might be
used. See, e.g., Ramirez, 523 U.S. at 71; United States v.
Harris, 435 F.2d 74, 81 (D.C. Cir. 1970), cert. denied, 402 U.S.
986 (1971); United States v. Nabors, 901 F.2d 1351, 1354 (6th
Cir.), cert. denied, 498 U.S. 871 (1990).


In this case, the agents were not aware before they entered
1430 Newton that any residents had criminal records or
violent tendencies. But they did have information that 1430
Newton had been robbed months earlier and that one man
residing there (Elias Ortiz) had been seen wearing a revolver,
allegedly to protect the residence from additional robberies.
Because the agents had specific knowledge that Ortiz kept a
firearm to protect against intruders and therefore might be
quick to use it, the agents had reason to suspect danger. The
fact that they assembled a SWAT team and took the precau-
tion of using a "flash bang" tends to show that they so viewed
the situation. Because the officers' belief that they were
entering a dangerous situation was objectively reasonable,
they were not required to knock and wait for a response.

Geraldo's remaining argument is that the agents exceeded
the scope of the search warrant at 1430 Newton Street by
continuing to search the townhouse after determining that
there were individual, locked bedrooms within the home,
indicative of a multi-unit dwelling. There is nothing to this.
Upon discovering that 1430 Newton consisted of several
individual rooms secured by padlocks, the agents properly
limited their search to common areas and those rooms inhab-
ited by persons named in the arrest warrants and in the
affidavits accompanying the search warrant. See Maryland
v. Garrison, 480 U.S. 79, 85 (1987). This was a reasonable
response to protect against an overbroad search of third
persons' rooms not intended to be included within the war-
rant. Even if the Fourth Amendment rights of third par-
ties--who were not named in the search warrant--were
violated by the agents' entrance into their rooms, see Mena v.
Simi Valley, 226 F.3d 1031 (9th Cir. 2000), the agents did not
infringe upon Geraldo's Fourth Amendment rights when they
searched other individuals' rooms within 1430 Newton. See
Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). In any event,
the cocaine encrusted razor blade, the documents, and the
key to the padlocked closet at 1823 Newton were found in
Geraldo's room.

Affirmed.