Can a police officer use force after achieving, by means of deception, a partial opening of an entryway implicates the knock-and-announce statute?

This court has not squarely faced the question whether use of force after achieving, by means of deception, a voluntary partial opening of an entryway implicates the knock-and-announce statute. In earlier decisions, however, we have held that a law enforcement officer's use of a ruse to gain admittance does not implicate section 3109 because it entails no breaking. Dickey v. United States, 332 F.2d 773, 777-78 (9th Cir.), cert. denied, 379 U.S. 948, 85 S.Ct. 444, 13 L.Ed.2d 545 (1964); Leahy v. United States, 272 F.2d 487, 489 (9th Cir.1959), cert. granted, 363 U.S. 810, 80 S.Ct. 1246, 4 L.Ed.2d 1152 (1960), and cert. dismissed, 364 U.S. 945, 81 S.Ct. 465, 5 L.Ed.2d 459 (1961).

These decisions leave us with little alternative but to uphold the action of the officers in this case. Under Dickey and Leahy, the officers were not in violation of section 3109 when See opened the door in response to the officers' ruse. The officers then stated their identity, authority and purpose. At that point, the purposes of section 3109 had been fully served. The warrant held by the officers entitled them to search whether or not their search was resisted. Their use of force to keep the door open, and to enter, did not implicate section 3109. Accord United States v. Salter, 815 F.2d 1150, 1152 (7th Cir.1987). To rule otherwise would dictate a nonsensical procedure in which the officers, after having employed a permissible ruse to cause the door to be opened, must permit it to be shut by the occupants so that the officers could then knock, reannounce, and open the door forcibly if refused admittance.

We AFFIRM Contreras-Ceballos's conviction.

* The parties to this case waived oral argument.

** The Honorable A. Wallace Tashima, United States District Judge for the Central District of California, sitting by designation.