United States v. Daher , 86 F. App'x 747 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 11, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-20503
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLY DAHER,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-314-1
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Charly Daher appeals his conviction for possession with intent
to distribute 5 grams or more of cocaine base within 1,000 feet of
a school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii),
and 860(a). Daher argues that the district court clearly erred in
denying his motion to suppress the evidence seized at his home
because the police did not knock and announce their presence before
forcibly entering in violation of 18 U.S.C. § 3109 and the Fourth
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Amendment.
In reviewing the denial of a motion to suppress made after a
pretrial hearing, we review the district court’s factual findings,
including its credibility choices, for clear error, and we view the
evidence in the light most favorable to the prevailing party.1 “A
finding of fact is clearly erroneous ‘when although there is
evidence to support it, the reviewing court on the entire evidence
is left with a firm and definite conviction that a mistake has been
committed.’”2 When findings rest on the credibility of witnesses,
“even greater deference to the trial court’s findings” is
warranted.3 If the district court’s account of the evidence is
plausible in light of the record, we may not reverse it.4
Daher argues that the district court’s credibility
determination that the police knocked and announced before entering
his home was clearly erroneous. He claims that one of the
officers, Officer Pudafin, admitted on cross-examination that there
was no knock and announcement. The single question and answer on
1
See United States v. Solis, 299 F.3d 420, 435 (5th Cir.
2002); United States v. Cantu, 230 F.3d 148, 150 (5th Cir. 2000).
2
In re Missionary Baptist Foundation of America, 712 F.2d 206,
209 (5th Cir. 1983) (citing United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)).
3
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575
(1985).
4
Id. at 573-74.
2
which Daher relies, however, were at best ambiguous.5 Officer
Pudafin and two other officers affirmatively and clearly testified
that they knocked and yelled and then waited 15 to 20 seconds
before entering Daher’s home. The district court concluded based
on the testimony and evidence that the officers knocked and
announced before entering. The court’s account of the evidence was
plausible, and we will not second-guess the court’s credibility
determinations.6
In his brief, Daher also requested that we hold this appeal in
abeyance until the Supreme Court decides United States v. Banks.7
The Supreme Court recently issued its decision, concluding that
police officers did not act unreasonably in waiting only 15 to 20
seconds after a single knock and announcement before forcibly
entering a defendant’s home.8 Daher has not argued on appeal, and
did not argue before the district court, that the police waited an
unreasonably brief period of time before entering his home, and
Banks is therefore inapposite.
5
On cross-examination, Officer Pudafin was asked whether
“anywhere in that report that I just handed back to you is it
indicated who knocked and announced or, in fact, did anyone knock
and announce that morning?” He responded “no.”
6
Anderson, 470 U.S. at 573-74; United States v. Garza, 118
F.3d 278, 283 (5th Cir. 1997).
7
United States v. Banks, 282 F.3d 699 (9th Cir. 2002), cert.
granted, 123 S.Ct. 1252 (2003).
8
United States v. Banks, 124 S.Ct. 521 (2003).
3
Because we find that the district court did not clearly err in
refusing to suppress the evidence seized, we affirm the district
court’s judgment.
AFFIRMED.
4