United States v. Minick

438 A.2d 205, 1982 D.C. App. LEXIS 269

• Court: District of Columbia Court of Appeals
• Decided: January 13, 1982
• Docket: 81-55
• Status: Published

Opinions

KELLY, Associate Judge:

In an indictment filed April 22, 1980, appellee was charged with felony murder, D.C.Code 1973, § 22-2401, and rape, D.C. Code 1973, § 22-2801. By pretrial motion, appellee sought to exclude from the government’s evidence, as fruit of an unlawful warrantless entry into his home, items seized from his person and from his home as well as statements made to the police following his arrest. Judge Carlisle E. Pratt granted the motion as to all physical evidence seized and as to an oral statement made by appellee in his home at the time of his arrest, but denied the motion as to an exculpatory written statement given by appellee, an hour later, at the police station. We affirm the trial court order from which the government appeals.¹

Detective Earl C. Bryant was the only witness to testify at the suppression hearing. The substance of his testimony is recounted here in detail to show the evidence upon which the trial court based its ruling.

At approximately 12:35 a. m., on February 27,1980, police received a telephone call from a Mr. Phillips (a security guard), who reported that a man and woman had disappeared into the woods behind an apartment building at 2135 Suitland Terrace, S.E. Two officers were sent to the scene to investigate. They spoke with Mr. Phillips who described the man as wearing a white skull cap and a short, dark brown coat. While the officers were searching the area, Mr. Phillips noticed the same man walking ² alongside the tennis courts, near the edge of the woods, and alerted the officers. The police officers unsuccessfully gave chase; however, they noted that the eluding subject was dressed in a brown jacket, dark pants and a white skull cap. A short while thereafter, the body of Suella King was discovered near the tennis courts, twenty-five to forty feet from where Mr. Phillips had seen the man in the white skull cap.

Detective Bryant and his partner, Detective Brooks, arrived at the scene at 1:20 a. m. A few minutes later, Bryant was told that a brown wallet had been discovered approximately twenty-five feet away from the body of the deceased, along the course the man in the white skull cap had taken. However, the wallet was not opened for another thirty-five or forty minutes while the evidence technician, Officer Muncey, completed other tasks. Around 2:00 a. m., Officer Muncey extracted from the wallet the driver’s license of a Willie L. Minick, residing at 3939 R Street, S.E., an address five blocks from the scene of the crime. This information was immediately forwarded to Detectives Brooks and Bryant who also learned within minutes that the deceased had been strangled and sexually assaulted.

The detectives remained on the scene until 4:00 a. m., overseeing the continuing search for evidence and the suspect. As their efforts proved fruitless, they returned to the homicide branch office at 300 Indiana Avenue, N. W. Detective Bryant then joined Officer Muncey who had retained the lost wallet, and together they examined its contents (for a period of 15 to 20 minutes) to ascertain its ownership. Most of the items found bore the name of Willie L. Minick, although some were identified as the property of a Patricia Meyers. Meanwhile, Detective Brooks had checked police records and discovered that a Willie Minick with the same birthdate and address as the Willie Minick whose driver’s license they had recovered had a prior rape conviction and a prior arrest record for a rape committed in the rear of 2135 Suitland Terrace, the location where the body of Suella King was discovered.³ The descriptions of Minick in the police records and on his driver’s license were consistent with the descriptions given by Mr. Phillips of the man in the white skull cap. By 4:30 a. m., Detective Brooks had relayed this information to his partner. According to the suppression hearing testimony of Detective Bryant, the two “then discussed the facts of the case, and . . . went over the physical evidence that we had observed there, and at that point, . . . decided to go to the R Street address ... to arrest Mr. Minick.” The officers considered first obtaining a warrant, but decided against it because they were afraid to lose evidence, such as “dirt, clothing . . . exchange of hairs, or anything that would show contact with the victim.” ⁴ Detective Bryant testified that their decision to effect a warrantless arrest was based on the fear that such evidence “would go down the drain with a shower or a bath.” His testimony was that the quickest he had ever gotten a warrant was between two and three hours. The detective did not state how many times he had sought to obtain a warrant during the night, nor that two to three hours was generally known to be the average time required for such a task. On cross-examination, Detective Bryant admitted that neither he nor his partner ascertained which judge was available to sign warrants on an emergency basis on the night of February 26-27, 1980.

Appellee was arrested in his home at approximately five o’clock in the morning on February 27, 1980. His sister had opened the door in response to repeated knocking, and, observing five police officers with guns drawn at their sides, stepped back. The police then saw appellee asleep in a chair just inside the door and entered the room. Appellee awoke to be handcuffed and read his Miranda rights. The officers then searched appellee and the premises, and recovered, among other items, a set of keys, a brown jacket and, from the kitchen, a white blood-stained smock which appellee said was his work smock. Upon questioning, the appellee also stated that the tee-shirt and black pants he then had on were the clothes he had been wearing that day. Half an hour after their arrival, the officers left appellee’s home, escorting him to police headquarters where appellee was photographed and combings were taken from his head and pubic area, and twigs and dirt were removed from his hair and knees. At 5:55 a. m., Detective Bryant, after advising appellee anew of his Miranda rights, began questioning him and obtained appellee’s written, signed, exculpatory statement.

At the conclusion of the suppression hearing, Judge Pratt ruled that the warrantless police entry of appellee’s home on February 27, 1980, was in violation of his Fourth Amendment rights; consequently, all physical evidence seized from his person and home would be excluded from trial.⁵

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Supreme Court ruled that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry for purposes of a routine felony arrest. The government’s sole argument here is that the warrantless entry of appellee’s home was not to effect a routine felony arrest but was justified by exigent circumstances, as those circumstances are to be assessed under the seven factor test enunciated in Dorman v. United States, 140 U.S. App.D.C. 313, 435 F.2d 385 (1970) (en banc).⁶ However, our review of the trial court’s ruling is limited, since we are bound to accept its findings with regard to exigent circumstances, absent clear error. Brooks v. United States, D.C.App., 367 A.2d 1297, 1302 (1976).

Briefly, the factual setting of Dorman was an armed robbery of a men’s store; discovery of a monthly probation report (Dorman’s) which had been dropped in the store; identification (from a photograph) of the eyewitnesses. The court explained:

The remand findings set forth the circumstances which in the opinion of the District Judge justified Dorman’s arrest without a warrant as follows: The police had positive identification of three eyewitnesses, and positive evidence of Dor-man’s current address. They had reason to believe Dorman might flee when he became aware of the loss of his probation papers identifying him. They knew Dorman and his associates were dangerous— they were armed and had physically abused their victims. The most likely place to find him after 10 p. m. was his home. The District Judge credited their testimony that the only purpose of the visit to his home was to arrest him. They needed no additional physical evidence. [Dorman v. United States, supra at 316, 435 F.2d at 388.]

In addition, it is important to note that the police called an Assistant United States Attorney, an established procedure to get preliminary approval before referring the matter to a magistrate, and began typing an affidavit to accompany an application for an arrest warrant. Id. at 315-16, 435 F.2d at 387-88. They were then advised that no magistrate could be found but that they could nevertheless arrest Dorman because “a felony was involved.” Id.

The trial court did undertake to measure and balance the Dorman factors and unequivocally found that one of the factors supported the reasonableness of the war-rantless entry, by noting that “undoubtedly, there was a grave offense involved.” Another factor which could support the permissibility of the entry is the officers’ reasonable belief that the suspect was on the premises. The court’s finding with respect to this factor, the fourth factor in the Dor-man list, is not entirely clear.⁷ We note, however, that while it is true that at the time the officers decided to make the war-rantless arrest, they had no special grounds to believe appellee would be at home, they plainly saw him there before entering his residence when his sister opened the door.

The peaceable though nonconsensual entry by the police is another factor, not specifically addressed by the trial court, but not subject to dispute, which supports the reasonableness of the entry under the Dor-man test. Nor did the trial court make a definite finding with respect to which way the “time of entry” factor⁸ would cut in this case.⁹ We similarly decline to resolve whether the added delay in obtaining a nighttime warrant provides the additional modicum of urgency required to justify this warrantless entry, for there is insufficient evidence of record for us to approximate either the average time required to obtain a nighttime warrant in this jurisdiction, or the time it would have required in this particular case.

The trial judge found that the rest of the Dorman exigent circumstance factors did not support the reasonableness of the warrantless entry. He concluded (1) that it was doubtful that the police “had reasonably trustworthy information to believe that the suspect committed the crime, over and beyond the minimum requirements of probable cause,” (2) that they “had no reason to believe that the suspect was armed,” and (3) that there were no facts to support any suspicion the officers may have had that the suspect might escape if not swiftly apprehended. None of these findings is clearly erroneous based on the suppression hearing testimony of Detective Bryant.

The government vigorously contests the first of these findings and argues that it was clear error for the court to consider “doubtful” whether the police had strong probable cause to arrest appellee. However, we cannot firmly refute the trial court’s conclusion that the police lacked “reasonably trustworthy information to believe that the suspect committed the crime, over and beyond the minimum requirements of probable cause.” The court noted that the wallet was not found in a truly incriminating place. In light of the proximity of the residence indicated on the enclosed driver’s license, it could as easily be inferred that the owner had dropped the wallet on an innocent expedition. The wallet was found twenty-five feet away from the body of the deceased, along the tennis court fence, far enough from the victim and close enough to the tennis courts to suggest that it need not have been dropped by the fleeing suspect. Without questioning police investigative procedures, we note that the wallet was not opened for thirty-five to forty minutes after its discovery, a fact which indicates the relative lack of interest it engendered among the detectives on the scene.

Another factor which casts doubt on the association between the wallet and the man chased by the police, is that the suspect fled in a direction opposite to that of the residence indicated on the driver’s license. The fact that there was a prior rape record on the man whose identifications were found in the wallet does not of itself constitute reasonably trustworthy information to believe that he committed this particular crime. Notwithstanding the court’s view that it was proper for “the police to focus in on a suspect who has an identical [modus operandi],” it apparently did not find such past criminal record, even together with the location of the wallet, to constitute a clear showing of probable cause, beyond that required to obtain a warrant. We see no clear error with that conclusion.

The trial judge also considered whether the possible destruction of evidence created a sufficient urgency to justify a warrantless entry. In Brooks v. United States, supra at 1303, this court, while “mindful of the danger [of] a preservation of the evidence rationale,” recognized that “[u]nder limited circumstances, the ‘likelihood of escape’ inquiry properly includes consideration of the probability that evidence as well as the suspect may be lost.” (Citations omitted.) See also Thomas v. United States, D.C.App., 352 A.2d 390 (1976) (possibility that evidence may be lost or destroyed constitutes exigent circumstance justifying warrantless search). In this case, where the only “official” explanation for why the police had not sought a warrant was that they felt they “would lose a quantity of evidence,” Judge Pratt correctly addressed that contention. However, Detective Bryant’s testimony failed to persuade him the police had a genuine, particularized concern over the destruction of evidence:

Taking — using their time frame, had they immediately applied for a warrant, they had reasonable expectations that they would have it by five o’clock. They made no effort whatsoever to obtain a warrant, but, instead, at five o’clock, they decided that the circumstances required their going without a warrant. There was no reason to believe that if the Defendant, or the suspect was going to bathe, that he had not bathed by five o’clock in the morning. It’s no more persuasive than if they had decided they were going in January rather than April because there was a greater possibility that the sooner you go, the better; but, beyond some rather generalized reasoning, there was no reason to believe that.

So, the Court does not have to address itself as to whether or not the police would have a right to make a warrantless entry for the purpose of seizing evidence, when there was no realistic exigent circumstance for preserving or believing it had been preserved by the time they went in. The right of entry of a private dwelling is a sacred trust that should not be invaded except upon exceptions to the warrant requirement.

The government charges that by suggesting that the police should have applied for a warrant at 2:00 a. m., the trial court “in effect ruled that the further investigations in which the police engaged here undercut their claim of exigency at the time when they did proceed to arrest appellee” and that this puts police in the quandary of having to risk failure of the Dorman test either for lack of clear probable cause or for dissipation of the exigency. But the trial court cannot be faulted for the inverse relationship of these two factors. For it is true, as time passes, probable cause to arrest tends to increase, while exigency, after a certain time, tends to diminish. The passage of time reduces the exigency after the point when an immediate escape and/or destruction of evidence might be effected. The preservation of “mere evidence” and the seizure of a suspect not known to be armed, are urgencies that attenuate over time, either because the evidence or suspect has likely disappeared already, or because their existence and location have probably attained a status quo position.¹⁰

Both flight and destruction of evidence could have been readily accomplished in this case before the police even discovered the contents of the wallet. The police must have been aware of such possibilities since they had given chase to a man whom they believed was both the owner of the wallet and the assailant. The suspect was thus on alert that the police were on his tracks and most likely realized that the body had been discovered, possibly also that his wallet had been found. If he was intent on fleeing or destroying evidence, he had all the reason in the world to do so immediately, if ever. The likelihood that he would decide on one or the other course diminished with every passing hour, and thereby reduced the exigency that would be present in a situation of hot pursuit, or if the suspect was known to be armed.

The trial judge concluded that “there were no realistic exigent circumstances for preserving or believing [the evidence] had been preserved by the time [the police] went in.” In so holding, he did not improperly substitute his “own view of what was probable and prudent” for the judgments of the experienced police officers on the scene, as alleged by the government. In evaluating the validity of the warrantless entry, the court did no more than objectively review the facts known to the officers “including the time factors” to determine whether “a prudent and cautious police officer could reasonably have concluded that immediate entry .. . was imperative.” Chappell v. United States, 119 U.S.App.D.C. 356, 359, 342 F.2d 935, 938 (1965). Its findings reveal no clear error,¹¹ but, on the contrary, fully support the grant of appel-lee’s motion to suppress. We agree that the government failed in this case to meet its heavy burden of showing “that there was a need that could not brook the delay incident to obtaining a warrant.” Dorman v. United States, supra at 320, 435 F.2d at 392.

Affirmed.

1 . D.C.Code 1973, § 23-104(a)(1).

2 . Although at the pretrial hearing Detective Bryant testified on direct examination that the man was running when Mr. Phillips saw him again, alone, on cross-examination, Detective Bryant admitted that Phillips said the man initially was walking along the tennis courts.

3 .The trial judge evidently misunderstood Detective Bryant’s testimony to be that Willie Minick had been “convicted of a rape in almost the same identical place.” Bryant’s description of Minick’s police record was somewhat ambiguous: “[he] had previous arrests and one conviction for rape, and one offense occurred in that same area.” Appellee points out in his brief that he was found not guilty of the earlier Suitland Terrace rape.

4 . Observations of knee impressions and debris near the deceased’s body at the scene of the crime, as well as the fact that her legs were spread wide, indicated to the officers that dirt, hair or fibers would likely be found on her assailant. v

5 . In addition, the court held that appellee’s oral statements made in his home following arrest must also be excluded from the government’s evidence because not preceded by a valid waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The government has expressly refrained from challenging this portion of the court’s ruling on appeal.

6 . The factors listed in Dorman v. United States, supra at 320-21, 435 F.2d at 392-93, as showing exigent circumstances supporting a war-rantless entry are:

(1) grave offense involved;

(2) suspect reasonably believed to be armed;

(3) clear probable cause to arrest;

(4) strong reason to believe that the suspect is on the premises;

(5) likelihood that the suspect will escape if not swiftly apprehended;

(6) whether entry is effected peaceably, without breaking;

(7) whether entry made during day or night.

7 . The following statement appears in the transcript record of the court’s ruling: “They had strong reason to believe the suspect was on the premises.” But it is ambiguous whether this was the trial judge’s conclusion, or merely his announcement of the next factor to be considered, for the sentence after the next notes the absence of evidence on the length of time that the suspect had resided at the particular address and on “any of the attendant facts.” In the intervening sentence, the trial judge refers to the fifth Dorman factor, the likelihood that the suspect will escape, a factor for which he finds insufficient factual support. It is thus unclear whether the last quoted sentence refers to inadequacy of factual support for the fourth or the fifth Dorman factors.

8 .Judge Leventhal recognized that whether the entry is made during the day or the night is a factor that “works in more than one direction.” Dorman v. United States, supra at 321, 435 F.2d at 393. Nighttime entry generally involves a greater intrusion on Fourth Amendment rights, but the delay in obtaining a nighttime warrant might underscore the level of urgency in effectuating a warrantless arrest.

9 . The court’s only reference to this factor came when defense counsel argued that nighttime entry, such as in this case, results in a greater intrusion. The trial judge then noted that on the other hand “at nighttime [appellee] would be more likely to be home.”

10 . Reasonable belief that the suspect is armed or that there is contraband evidence to be seized may toll the attenuation of exigent circumstances since the presence of weapons or other contraband presents dangers beyond the risk of flight and destruction of evidence inherent in every case where the police are not able to swiftly apprehend the wrongdoer(s).

11 . Any error the court may have committed with regard to the fourth Dorman factor, see supra note 7, does not alter the validity of the rest of the court’s findings, including its ultimate ruling, and does not leave us “with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948).