Sturdivant v. United States

551 A.2d 1338, 1988 D.C. App. LEXIS 231, 1988 WL 138976

• Court: District of Columbia Court of Appeals
• Decided: December 29, 1988
• Docket: 84-522
• Status: Published

Opinions

BELSON, Associate Judge:

This case presents the question whether the warrantless search of an attic crawl space above appellant’s bedroom was permissible under the exigent circumstances exception to the warrant clause of the Fourth Amendment. The trial court denied appellant’s motion to suppress the evidence found in the crawl space. After a jury trial, at which that evidence was presented, appellant was convicted of one count of armed robbery, D.C.Code §§ 22-2901, -3202 (1981 & 1987 Supp.), and two counts of possession of a prohibited weapon, D.C. Code § 22-3214 (1981). Because we conclude that the immediate need to protect the officers as well as the community justified the limited search that was conducted, we affirm.

At approximately 7:37 p.m. on October 18,1982, appellant Johnny Mack Sturdivant approached a George Washington University Law School professor in front of her house in the 200 block of 5th Street, S.E., shot her in the head with a sawed-off shotgun, and fled with her briefcase into a blue 1976 Oldsmobile that was waiting nearby. The car, driven by another man, sped away. A passerby who saw the man fleeing recorded the license plate number of the getaway car.

Within minutes, several police officers responded to the scene. A “Wales” check revealed that the car was registered to a Fletcher Stewart living at 1536 D Street, S.E. Upon learning this information, some of the officers who were on the scene, as well as others who were cruising the area looking for the car, were dispatched to that address, arriving within approximately fifteen minutes of the shooting. One officer found the blue Oldsmobile parked in back of the small rowhouse, unoccupied; he ascertained that it had been driven recently by noting its hot muffler, the water dripping from beneath it, and the fresh tire tracks made when it was driven through a puddle; he then radioed this information to three other officers who were stationed in front of the house. Expecting the suspects to be inside the house, the three officers in front knocked on the front door.

Fletcher Stewart’s wife answered the door and informed the officers that her husband was not there but at work. The officers then entered the house to look for the suspects. Finding no one else on the first floor, they ascended the stairs to the second floor. Mrs. Stewart followed them upstairs. In a bedroom, the officers found codefendant, Clem Jones. In another bedroom behind that one, they found Sturdi-vant. The officers saw no other persons in the house.

Because Sturdivant closely matched the description of the gunman, he was taken outside for a show-up identification. Jones remained upstairs with Officer Ball, who informed him that he was investigating a shooting and advised him of his Miranda¹ rights. Jones continued to talk, however. He admitted that he had been driving the car. He explained that, although the car was registered to his father, Fletcher Stewart, he used it on occasion. He also stated that Sturdivant was his uncle. During this conversation, Officer Ball received word that Sturdivant had been positively identified and had been arrested. Officer Ball then placed Jones under arrest and read-vised him of his Miranda rights. Jones again stated that he understood his rights and was willing to talk.

By this time, Officer Ball and Jones had moved to the back bedroom, where Sturdi-vant slept and where he had been found by the police during their search for the suspects. Because the police had discovered no weapons during that search, Officer Ball asked Jones if he knew where the gun was located, stating that it was important to get the gun out of the house. Pointing to a trap door in the ceiling of the room where they were standing, Jones replied that the gun was in the attic crawl space, but indicated that other members of the family would not come across it.

After Sturdivant was taken to police headquarters, Detective Wyzgowski and Officer Peck of the Crime Scene Search Unit, who had arrived at the house sometime earlier, stacked two pieces of furniture on top of one another to remove the trap door to the crawl space. Just inside the opening was a large brown leather briefcase and an open gym bag, the only items in the crawl space. The gym bag contained two sawed-off shotguns and a green Army field jacket. The briefcase contained books and papers belonging to the victim. Jones remained in the bedroom with the police during the search. He identified the items recovered as the articles that Sturdivant had placed in the crawl space after the robbery. The search for the suspects as well as the guns took no more than an hour.

After a hearing, the trial court denied Sturdivant’s motion to suppress the physical evidence. The court noted that “the first officers arrived at the house on ‘D’ Street within minutes, ten to 15 minutes at most, after the actual offense was committed. ... [I]t is as close to hot pursuit as can be....” After discussing the need to protect the officers and the danger of waiting while someone ran downtown to get a warrant, the court concluded that although there had been no consent to the initial entry into the house or the subsequent search for the gun, both the entry and the search met the tests of Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1966), and Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (en banc).

In challenging the trial court’s decision, appellant does not dispute the legitimacy of the officers’ initial entry into the house in order to effect his arrest. Nor does he argue that the officers lacked probable cause for the search of the attic crawl space. Rather, he contends, his Fourth Amendment rights were violated by the warrantless search of the attic crawl space for the gun.²

“The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)). The government does not argue that the search of the attic crawl space was carried out pursuant to consent. It is not clear whether Jones in fact consented to the search, or had authority to do so. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973) (search conducted pursuant to consent exempt from probable cause and warrant requirements); Derrington v. United States, 488 A.2d 1314, 1325 (D.C.1985) (appellant’s grandmother, the lessee of the apartment, had authority to give permission for search). Nor does the government seek to justify the search as incident to appellant’s arrest or that of Jones. Cf. Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 2043, 23 L.Ed.2d 685 (1969) (scope of a police search incident to arrest deemed unreasonable). At the time the search was initiated, appellant was in a transport car on his way to police headquarters. Although Jones was still in the room where the hatch was located, access to the crawl space was beyond “the area ‘within his immediate control.’ ” Chimel, supra, 395 U.S. at 763, 89 S.Ct. at 2040. Thus, we consider whether exigent circumstances made the search for the gun valid without a warrant.

In Hayden, supra, the Supreme Court found that exigent circumstances allowed the police to enter and search a house without a warrant for a man who had robbed a taxicab company at gunpoint minutes before. During the search for the suspect, the officers located two guns in a toilet flush tank and, in a washing machine, clothing that matched the articles the suspect was reported to have been wearing. The United States Supreme Court held that both the entry and the search that produced the guns and evidence were valid. The Court noted:

The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that [the suspect] was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.

Hayden, supra, 387 U.S. at 298-99, 87 S.Ct. at 1646.

In Dorman, supra, the United States Court of Appeals for the District of Columbia Circuit upheld a warrantless, uncon-sented, and nonforceable entry and search of a residence for a man who had robbed a clothing store four hours earlier. During the search for the suspect, the police discovered a suit that had been stolen from the store hanging in a closet where they thought the suspect might be hiding. Id. 140 U.S.App.D.C. at 316, 435 F.2d at 388. Although the search took place too long after the robbery for it to be deemed in hot pursuit, id. at 321, 435 F.2d at 393, several underlying factors quite similar to those present in a case of hot pursuit led the court to conclude that exigent circumstances made the search reasonable. Id. at 320-21, 435 F.2d at 392-93. These factors have been summarized as follows:

(1) that a grave offense is involved, particularly a crime of violence; (2) the suspect is reasonably believed to be armed; (3) a clear showing of probable cause; (4) a strong reason to believe that the suspect is in the dwelling; (5) the likelihood of escape if not swiftly apprehended; (6) a peaceful entry as opposed to “breaking”; and (7) the time of entry (night or day).

United States v. Lindsay, 165 U.S.App.D.C. 105, 110, 506 F.2d 166, 171 (1974).

In both Hayden and Dorman the search that uncovered the evidence occurred contemporaneously with the search for the suspect. In Ruth v. United States, 438 A.2d 1256 (D.C.1981), however, this court had occasion to consider the validity of a search for a weapon that took place after the defendant’s arrest. Ruth and his accomplice were suspected of having beaten one man and shot another shortly before the police were summoned. Upon learning the identity of the suspects from a bystander who had watched them flee, the police drove immediately to Ruth’s house. As the officers approached the house, they observed Ruth in a second floor bedroom with a woman in a blue bathrobe. Ruth appeared to be placing something behind the dresser. By the time the officers knocked on the door, however, Ruth had come downstairs. He and his accomplice, who was also downstairs, were taken outside and positively identified. After they were arrested, two officers went upstairs to conduct a limited search motivated by what they had earlier seen through the window and by their knowledge that the assailants had been armed. Although the item behind the dresser turned out to be a bag of blood-stained money, rather than a gun, the officers seized it, as well as other evidence lying about the room in plain view. We held in Ruth that the officers were justified in entering the bedroom to conduct a protective search for weapons and persons. Id. at 1260. They were aware that a serious offense had been committed, that the weapon had not been found, and that another person had been present when the object thought to be the gun was hidden behind the dresser. Cf. Vance v. United States, 399 A.2d 52 (D.C.1979) (search of apartment permissible after the two suspects had been arrested to ensure that no other hostile person remained who had access to the yet undiscovered shotgun); United States v. Miller, 145 U.S.App.D.C. 312, 449 F.2d 974 (1971) (search of a dentist’s office after suspect was apprehended justified by need to find any other persons who might have been there). We also held that the bloodstained money and other items were lawfully seized, noting that “the police conducted a brief, limited search incident to a hot pursuit. All of the items seized were located in appellant Ruth’s bedroom, all items were within easy access of the officers, and no full search of the premises was conducted.” Ruth, supra, 438 A.2d at 1260 (footnote omitted).

Sturdivant points out that in this case, unlike Hayden and Dorman, the search for the gun was conducted after he and Jones had been arrested and he had been transported to headquarters. He attempts to distinguish this case from Ruth, as well, because the only other person in the house, Mrs. Stewart, had already been located. Thus, he argues, any exigency that existed at the time the officers entered the house had dissipated by the time the officers decided to search the crawl space. In addition, he maintains, the police could not have feared that the gun might be removed, misused, or destroyed since Jones had assured them that no one in the household would come across it. We are unpersuaded by his efforts to distinguish Ruth.

To determine whether exigent circumstances existed, we examine “the facts perceived by the police at the time of ... the initiation of the search.” Gant v. United States, 518 A.2d 103, 107 (D.C.1986). At the time the police commenced the search, they knew that a sawed-off shotgun had been used in a serious crime and that it had not been retrieved. We have observed that the presence of such weapons creates a special exigency because of their potential threat to human life. See Derrington, supra, 488 A.2d at 1324 (citing United States v. Allison, 205 U.S.App.D.C. 270, 272, 639 F.2d 792, 794 (1980); United States v. Hendrix, 194 U.S.App.D.C. 76, 79, 595 F.2d 883, 886 (1979)); Gaulmon v. United States, 465 A.2d 847, 851 (D.C.1983) (“threat of harm to both police and public”); In re F.D.P., 352 A.2d 378, 383 (D.C.1976) (“possibility of harm to the public at large if the gun fell into ‘untrained or perhaps malicious hands’ ”); see also United States v. McEachin, 216 U.S.App.D.C. 320, 325, 670 F.2d 1139, 1144 (1981) (“exigency was heightened by the fact that the evidence about to be removed was a deadly weapon”); United States v. McKinney, 155 U.S.App.D.C. 299, 301, 477 F.2d 1184, 1186 (1973) (per curiam) (presence of sawed-off shotgun in hotel room was “an ominous threat in and [of] itself”). In addition, the police knew that if the gun remained in the house after appellant and Jones were removed, the other members of the family who had not been arrested would still have access to it and could use or destroy it. Cf. United States v. Socey, 269 U.S.App.D.C. 453, 846 F.2d 1439 (1988) (reasonable belief that evidence inside a home will be destroyed can be established by showing “1) a reasonable belief that third persons are inside a private dwelling and 2) a reasonable belief that these third persons are aware of an investigatory stop or arrest of a confederate”). Despite Jones’ assurances, the police reasonably could have believed that other family members knew of the gun’s whereabouts. Even if Mrs. Stewart had no prior knowledge of the gun or its hiding place, the police were aware that she was standing nearby while they were questioning Jones and easily could have overheard his responses. They also knew that her husband was expected to return that evening and might know about the gun. Thus, the exigencies present when the officers entered the house did not disappear simply because all persons in the house apparently had been located and the suspects had been arrested. The government has met its burden “to show that there was a need that could not brook the delay incident to obtaining a warrant....” Dorman, supra, 140 U.S.App.D.C. at 320, 435 F.2d at 392.

The decision to search was also supported by the fact that the police had strong reason to believe that the gun was located in the attic space, as Jones had indicated. Since the attic space was accessible through appellant’s bedroom ceiling, it was a logical and convenient place for him to hide the gun. The police also knew that appellant, who was found in that room during their initial search, had had an opportunity to hide the gun there after the shooting.

As in Ruth, supra, 438 A.2d at 1256, the search conducted in this case was brief and limited to the small area where the police had cause to believe the gun was located. At the time of the search, the police were lawfully on the premises and in the room from which the search took place. Cf. Douglas-Bey v. United States, 490 A.2d 1137, 1140 (D.C.1985) (Nebeker, J., concurring) (citing Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)) (reentry of officers to conduct general search for evidence unconstitutional without a warrant). Furthermore, the search entailed only a minor intrusion into the crawl space. Once the officers had reached in and recovered the weapons and the briefcase, the search ended. We hold that the search was a reasonable, limited protective search of the crawl space for weapons. Once the hatch was opened and the briefcase came into view, the officers were entitled to seize it as well. See Hayden, supra, 387 U.S. at 300-10, 87 S.Ct. at 1646-52; Ruth, supra, 438 A.2d at 1260; Vance, supra, 399 A.2d at 58-59 (citing Coolidge v. New Hampshire, 403 U.S. 443, 466-71, 91 S.Ct. 2022, 2038-41, 29 L.Ed.2d 564 (1971)); Miller, supra, 145 U.S.App.D.C. at 315, 449 F.2d at 977; Dorman, supra, 140 U.S.App.D.C. at 322, 435 F.2d at 394.³

Consistent with our holdings in Ruth and Vance, supra, we hold that the search of the attic area and the seizure of the weapons and evidence did not violate Sturdi-vant’s Fourth Amendment rights.

AFFIRMED.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . Although the trial court expressed no separate findings concerning the search of the crawl space, we must affirm the trial court’s denial of the motion to suppress if, taking the evidence in the light most favorable to the government, it is “supportable under any reasonable view of the evidence.” Brooks v. United States, 367 A.2d 1297, 1304 (D.C.1976) (citations omitted).

3 . Sturdivant also suggests that a warrant was needed for the search in question because it was an entry into a separate closed compartment outside of Sturdivant’s reach. We disagree, and observe that Chimel, supra, does not rule out all contemporaneous searches to seize weapons. 395 U.S. at 752, 89 S.Ct. at 2034.