United States v. Ciammitti, 720 F.2d 927, 933 (6th Cir. 1983), cert. denied, 466 U.S. 970, 104 S.Ct. 2342, 80 L.Ed.2d 816 (1984); United States v. West, 328 F.2d 16, 18 (2d Cir. 1964).United States v. Aldrete, 414 F.2d 238, 239 (5th Cir. 1976) (per curiam) (officers saw two figures rushing to rear of house).United States v. Wysong, 528 F.2d 345 (9th Cir. 1976) (likelihood of destruction of narcotics); United States v. Allende, 486 F.2d 1351, 1353 (9th Cir. 1973), cert. denied, 416 U.S. 958, 94 S.Ct. 1973, 40 L.Ed.2d 308 (1974).
Such determination is by the statute itself not reviewable by us. 28 U.S.C. § 2906. See, United States v. Aldrete, 414 F.2d 238 (5th Cir. 1969). The trial court in the instant case did exercise its discretion, and hence Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970), and United States v. Williams, 407 F.2d 940 (4th Cir. 1969), are inapposite. There is no error in this regard.
The Third and Fifth Circuits have reached the same conclusion on somewhat similar facts — the occupant was seen running away from the door. United States v. Augello, 368 F.2d 692, 693-694 (3rd Cir. 1966), reversed on other grounds, 390 U.S. 200, 88 S.Ct. 900, 19 L.Ed.2d 1036; United States v. Aldrete, 414 F.2d 238, 239 (5th Cir. 1969); see also United States v. Squella-Avendano, 447 F.2d 575, 584 (5th Cir. 1971). The Ninth Circuit has also recognized the "fleeing footsteps" justification.
Likewise, in McClure v. United States, the court found that entry had been refused where law enforcement agents observed occupant turn and run after she saw them through a window and then heard “footsteps running in the wrong direction” when they arrived at the door. 332 F.2d 19, 21–22 (9th Cir.1964), cert. denied, 380 U.S. 945, 85 S.Ct. 1027, 13 L.Ed.2d 963 (1965) ; see also United States v. Augello, 368 F.2d 692, 694–695 (3rd Cir.1966) (“When, after making their announcement, the officers saw the appellant's sister running away from the door and calling the name of the very person for whose arrest they possessed a warrant, they were justified in making an immediate entry.”), reversed on other grounds, 390 U.S. 200, 88 S.Ct. 900, 19 L.Ed.2d 1036 (1968) ; United States v. Aldrete, 414 F.2d 238, 239 (5th Cir.1969) ( “Searching officers demanded entry to the residence. Fifteen to 20 seconds elapsed, they could see two persons rushing to the rear of the house, then they broke in the door.
Thus, it has been recognized that the police may forcibly enter a dwelling following announcement once they have reasonably determined that persons inside are attempting to escape, destroy evidence, resist entry or harm someone inside. See United States v. Phelps, 490 F.2d 644 (9th Cir. 1974); United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974); United States v. Pratter, 465 F.2d 227, 230-232 (7th Cir. 1972); Stamps v. United States, 436 F.2d 1059 (9th Cir. 1971); United States v. Aldrete, 414 F.2d 238 (5th Cir. 1969); Masiello v. United States, supra; State v. Mariano, supra. Not surprisingly, these circumstances which justify an inference of refusal of admittance parallel those which could justify a forcible entry without prior announcement. See Ker v. California, supra, 374 U.S. at 47, 83 S.Ct. 1623 (Brennan, J., dissenting). Indeed, it would be irrational to suggest that the police could be barred from making a forcible entry following an announcement under circumstances which could justify their entry had no announcement been made.
It is apparent that the gathering of information in such a manner more than satisfies the test of showing that the information was gained in a reliable fashion. See, e. g., United States v. Hood, 422 F.2d 737 (7th Cir. 1970); United States v. Aldrete, 414 F.2d 238 (5th Cir. 1969); United States v. Kidd, 407 F.2d 1316 (6th Cir. 1969). All of the other information contained in the affidavit has its source in personal investigation of the various law enforcement officers involved in the preparation and investigation of the case: the information concerning the listings of telephones was obtained from telephone company records; automobile registration records and background information on the defendants resulted from a personal check of the relevant police and motor vehicle bureau files; identification of the defendant Staino and of the residence outside of which the exchange of contraband took place were made by the informant to a government agent.
It should go without saying that where the affidavit reveals that the information is based on the personal observation and participation of the informant in the transactions under investigation, it satisfied the test of showing that the information was obtained in a reliable manner.See, e.g., United States v. Hood, 422 F.2d 737 (7th Cir. 1970); United States v. Aldrete, 414 F.2d 238 (5th Cir. 1969); United States v. Kidd, 407 F.2d 1316 (6th Cir. 1969). The second informant, supplied by Sheriff Cline, principally furnished general information adding nothing to what had been supplied previously by the FDLE informant.
1969); McNutt v. State, 143 Miss. 347, 108 So. 721 (1926); Ingram v. State, 146 Miss. 303, 111 So. 362 (1927); Holmes v. State, 146 Miss. 351, 111 So. 860 (1927); Story v. City of Greenwood, 153 Miss. 755, 121 So. 481 (1929); Salisbury v. State, 293 So.2d 434 (Miss. 1974); and Mapp v. State, 148 Miss. 739, 114 So. 825 (1927); State v. Smith, 477 So.2d 893 (La. 1985); Bretti v. Wainwright, 439 F.2d 1042 (5th Cir. 1979); U.S. v. Aldrete, 414 F.2d 238 (5th Cir. 1969). Appellant Alexander now claims that the question before this Court is whether he received effective assistance of counsel "where his trial counsel's strategy had no legal foundation upon which to stand."
Thus, existence and voluntariness of consent to search are questions to be decided solely by the judge and not the jury. United States v. Aldrete, 414 F.2d 238 (4) (5th Cir. 1969); United States v. Watson, 459 F.2d 588 (1) (8th Cir. 1972). The trial court did not err in failing to instruct the jury on consent to search.
Affirmed. See Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; United States v. Rich, 5 Cir. 1969, 407 F.2d 934; United States v. Aldrete, 5 Cir. 1969, 414 F.2d 238; State v. Jones, Fla. 1967, 204 So.2d 515; and F.S. 1967, Section 40.43, F.S.A. CROSS, C.J., and McCAIN and OWEN, JJ., concur.