West v. United States

710 A.2d 866, 1998 D.C. App. LEXIS 85, 1998 WL 208889

• Court: District of Columbia Court of Appeals
• Decided: April 30, 1998
• Docket: 96-CO-1778
• Status: Published

Opinions

SCHWELB, Associate Judge:

Following the denial of his pre-trial motion to suppress physical evidence, James N. West, Jr. entered a conditional plea of guilty of possession of cocaine with intent to distribute it, in violation of D.C.Code § 33—541(a)(1) (1993). On appeal, he contends that police officers who had secured a warrant to search his apartment for narcotics violated the applicable “knock and announce” statute, D.C.Code § 33-565(g), by prematurely forcing entry into the apartment with a battering ram. He therefore claims that the evidence recovered as a result of that entry should have been suppressed. We agree and reverse.

I.

Sergeant David Robinson of the Metropolitan Police Department, a nine-year veteran with extensive search warrant experience, was the principal government witness at the hearing on West’s motion to suppress evidence. Robinson testified that, on September 28,1995, at about 9:40 p.m., he and other officers under his command came to West’s apartment in southeast Washington, D.C. to execute a search warrant for narcotics. When they arrived, Robinson heard the sounds of a video game being played in the apartment. He knocked on the door “real loud” and shouted “Police! We have a search warrant! Open the door!”

Sergeant Robinson testified that, after he knocked and announced, “[t]he video game stopped and I heard footsteps. They did not sound like they were coming towards the door, and no one answered the door.” Suspecting that evidence might be in the process of being destroyed, Robinson instructed one of the officers to force the door with a battering ram. According to Robinson, the time that elapsed between the original knock and the entry with the ram was “about 5 seconds.” In the apartment, officers recovered thirty-two rocks of crack cocaine, as well as seventy-five empty ziplock bags and a pager. West admitted that the cocaine and paraphernalia belonged to him.

At the conclusion of the hearing, the trial judge issued his oral ruling. The judge stated that he credited Sergeant Robinson’s testimony.¹ He noted that Robinson was an experienced officer, and that “no reason was given for Sergeant Robinson not knocking and announcing.” He found, in conformity with Robinson’s testimony, that after Robinson had knocked and announced, the video game was placed on pause. Then, according to the judge, Robinson “for whatever reason, maybe hearing the children running, but certainly not an unreasonable interpretation, instructed the individuals to bang the door down.” The judge also commented that Robinson “could have knocked and broken in within one second if he felt that that was a reasonable amount of time based on his experience and what he heard.” The judge therefore denied West’s motion to suppress tangible evidence. West entered a conditional guilty plea, and the judge sentenced him to a term of imprisonment. This appeal followed.

II.

In reviewing the trial judge’s decision, we are bound by his factual findings unless they are clearly erroneous. See D.C.Code § 17-305(a) (1997); Griffin v. United States, 618 A.2d 114, 117 (D.C.1992). The judge’s legal conclusions, on the other hand, are reviewed de novo. Id. (citations omitted). Whether the officers were “refused admittance” to West’s apartment, within the meaning of Section 33-565(g), is a mixed question of law and fact. Id. Because basic constitutional liberties are implicated,² we apply the more searching de novo standard. Id. at 118; see also Poole v. United States, 630 A.2d 1109, 1117 (D.C.1993), cert. denied, 513 U.S. 855, 115 S.Ct. 160, 130 L.Ed.2d 98 (1994).³

Our “knock and announce” statute provides, in pertinent part, that an officer “may break open any outer or inner door ... to execute [a] warrant [for controlled substances] if, after notice of his authority and purpose, he is refused admittance.” D.C.Code § 33-565(g). The present appeal turns on whether the officers were “refused admittance” within the meaning of the statute.

“Refusal to admit the police is to be distinguished from failure to do so ..., [for] to refuse to do something is an act of the will, while to fail to do it may be an act of inevitable necessity.” Griffin, supra, 618 A.2d at 120 (citations and internal quotation marks omitted). “[T]he police need not wait for the occupants affirmatively to refuse them admittance [, however,] if the police can reasonably infer from the actions or inactions of the occupants that [the officers] have been constructively refused admittance....” Williams v. United States, 576 A.2d 700, 703 (D.C.1990). “Special circumstances supporting a reasonable belief on the part of the police that the occupants’ non-response to knocking and announcement pursuant to §■ 33-565(g) is deliberate will justify a forced entry almost immediately after their detection.” Griffin, supra, 618 A.2d at 124-25 (footnote omitted). In the absence of such special circumstances, however, “a significant time lapse is required to justify a conclusion that admittance was refused.” Id. at 125 (citation and internal quotation marks omitted).

In the present case, there was no “significant time lapse.” Sergeant Robinson testified that approximately five seconds elapsed between his knock on the door and the officer’s use of the battering ram. During those five seconds, Robinson had to make the decision that forced entry was required. He also had to communicate to his subordinate that the time had come to “ram” the door. The officer then had to apply the battering ram to the door. Each of these steps takes at least a minimal amount of time, and the case is not so very different from the situation envisaged by the trial judge, in which a single second could, in his view, constitute a “reasonable time.”

There was no evidence that the police expected anyone in the apartment to be armed or dangerous, and the government makes no claim of exigent circumstances on that account. Cf. Poole, supra, 630 A.2d at 1118-22; Culp v. United States, 624 A.2d 460, 462-64 (D.C.1993). The search warrant in this ease was for controlled substances, which can easily be flushed down the toilet or otherwise concealed or destroyed, but this alone does not constitute exigent circumstances. Griffin, supra, 618 A.2d at 124.⁴ The government thus relies exclusively on two facts as providing the special circumstances that are required to permit forced entry: first, that the video game was turned off, and second, that Robinson heard steps that “did not sound like they were coming towards.the door.”

The government cites no authority, and we know of none, to support its contention that sounds like these, without more, permitted the officers to conclude, within five seconds or less, that someone had deliberately refused them entry. Both facts relied upon are quite ambiguous. We know of no reason to believe that an occupant would turn off a video game if he wanted to exclude the police, but that he would keep the machine on if he intended to permit the officers to enter. Footsteps that did not “sound” as if they were headed towards the door might be significant if they continued for an appreciable period of time, but even the most cooperative oceupant might need to fetch his bathrobe or slippers before coming to the door.

There is obviously no specific time period, applicable to all situations, which must elapse before the police may reasonably infer that they have been refused admittance. Most of the decisions are heavily fact-bound. In Griffin, supra, 618 A.2d at 115-16, we held that a period of thirty seconds from the knock on the door to the forced entry was insufficient, but in that case the police executed the. search warrant at 1:40 a.m., and the occupants of the apartment could be expected to be asleep. In Poole, supra, 630 A.2d at 1117, we concluded as a matter of law that a delay of ten seconds at 8:15 on a Saturday morning was not enough, but in that case, unlike this one, the officers heard nothing in the apartment to suggest to them that anyone was at home. “Generally, a delay of five seconds or less after knocking and announcing has been held a violation of 18 U.S.C. § 3109.”⁵ United States v. Jones, 133 F.3d 358, 361 (5th Cir.1998) (per curiam). In United States v. Moore, 91 F.3d 96 (10th Cir.1996), the court summarized the recent federal cases relating to the kind of situation presented here.⁶ We do not believe that any of these decisions accords the police as much leeway as the government is claiming in this case. In sum, we conclude that the facts to which Sergeant Robinson testified were insufficient, as a matter of law, to support a reasonable belief that the occupants had deliberately refused the police entry. The time was simply too short to warrant such a conclusion.

The government relies principally on United States v. Bonner, 277 U.S.App.D.C. 271, 874 F.2d 822 (1989). In our view, however, Bonner—a 2:1 decision from which then Chief Judge Wald vigorously dissented—is readily distinguishable from the case before us. In Bonner, the searching officers knocked loudly on the door three times. They heard “what sounded like footsteps running from the door,” as well as “thumping or bumping inside the premises.” 277 U.SApp.D.C. at 272, 874 F.2d at 828 (emphasis added).⁷ “[Fallowing their renewed knocking and announcement, officers heard sounds consistent with both refused admittance and destruction of the object of the search.” 277 U.SApp.D.C. at 274, 874 F.2d at 825 (emphasis added). Even so, the interval between the officers’ first knock on the door and the forced entry was approximately eleven or twelve seconds—more than twice the period that Sergeant Robinson waited in the present case. The similarities between the two cases are thus less remarkable than the differences.

The protection of a citizen’s home from forced entry is at the core of the values secured by the Fourth Amendment and by the knock-and-announce statute. Breaking down a door with a battering ram may help to apprehend drug dealers such as West, but it also places the safety and property of innocent residents of the home at risk. Such a drastic measure may not be undertaken, under our statute, unless the information available to the police permits them reasonably to infer that the occupants have deliberately refused them entry. In this case, the facts were too sparse, and insufficient time had elapsed, to permit the intrusive action taken by the officers.

III.

For the foregoing reasons, West’s conviction is reversed. The case is remanded to the trial court with directions to grant West’s motion to suppress tangible evidence.

So ordered.

1 . West and several relatives and friends testified that the officers broke down the door without either knocking or announcing their presence. In addition. Sergeant Robinson did not state in his police report that he knocked on the apartment door before he used the ram. Nevertheless, the trial judge credited Robinson’s testimony.

West asks us to hold, in light of the impeachment of Robinson and the testimony of the defense witnesses, that the officers did not knock or announce. The trial judge heard the testimony and we did not, and we decline to engage in the appellate fact-finding which would be required to overturn the judge’s credibility determinations.

See, e.g., In re S.G., 581 A.2d 771, 774-75 (D.C. 1990).

2 . "Given the longstanding common-law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment thought that the method of an officer’s entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search_" Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 1918, 131 L.Ed.2d 976 (1995).

3 . In arguing for suppression in the trial court, West focused on his claim that the officers did not knock and announce, and he did not specifically argue that the time lapse between the officers’ announcement of their presence and their use of the battering ram to break down the door was too short to permit a finding of compliance with § 33—565(g). In its brief in this court, the government took the position that West had waived the latter point, and that if this court were to consider West's new argument on appeal at all, the "plain error” standard of review was applicable. In his motion to suppress evidence, however, West explicitly alleged that ”[i]n the instant case there was no constructive refusal to admit the police officers,” and at oral argument the government expressly, and in our view providently, acknowledged that this was sufficient to preserve the issue for review. “[0]nce a ... claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments made below.” Yee v. Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 1532, 118 L.Ed.2d 153 (1992) (citations omitted); Mills v. Cooter, 647 A.2d 1118, 1123 n. 12 (D.C.1994).

4 . Indeed, § 33-565(g), which permits forced entry only after police have been "refused admittance,” deals exclusively with search warrants for unlawful drugs. If we were to hold that the possibility that drugs will be destroyed, standing alone, excuses compliance with the knock and announce rule, then § 33-565(g) "would be undermined to the point of inefficacy in any search warrant case involving alleged distribution of narcotics.” Griffin, supra, 618 A.2d at 124 (citations omitted).

5 . 18 U.S.C. § 3109 is the federal counterpart of D.C.Code § 33-565(g).

6 .If the occupants do not admit the officers within a reasonable period of time, the officers may be deemed to be constructively refused admittance, and they may then enter by force. United States v. Knapp, 1 F.3d 1026, 1031 (10th Cir.1993) (“It was plausible for the officers to conclude that they were affirmatively refused entry after a ten to twelve second inter-val_”). Here, however, the district court found that the forced entry was "virtually instantaneous” and correctly concluded that this precluded any claim that the officers were constructively refused admittance. At most, the officers waited three seconds: significantly less time than in prior cases in which constructive refusal has been found. Compare United States v. Lucht, 18 F.3d 541, 550-51 (8th Cir.) (waiting three to five seconds before entering was not long enough to find constructive refusal to admit), cert. denied, [513 U.S. 949, 115 S.Ct. 363, 130 L.Ed.2d 316] (1994); United States v. Marts, 986 F.2d 1216, 1218 (8th Cir.1993) (less than five seconds was not sufficient to find constructive refusal to admit); and United States v. Rodriguez, 663 F.Supp. 585, 587-88 (D.D.C.1987) (three to five second delay was insufficient to find constructive refusal to admit) with [U.S. v.] Smith, 63 F.3d [956,] 962 [10th Cir. (1995)] (forty-five seconds was sufficient to find constructive refusal to admit) and Knapp, [supraf] 1 F.3d at 1030-31 (ten to twelve seconds was sufficient to find constructive refusal to admit).

Moore, supra, 91 F.3d at 98.

7 . Applying the constitutional standard of Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), our dissenting colleague suggests that "there is no constitutional or statutory difference between steps that do not sound like they are (or sound like they are not) coming toward the door and steps that sound like they are retreating.” In Richards, the question was whether there had been an unreasonable search or seizure, in violation of the Fourth Amendment. The present case, on the other hand, turns on the construction of a local statute which permits an officer to break down the door only if "he is refused admittance." That statute had been construed by this court in Williams, supra, 576 A.2d at 703, and in Griffin, supra, 618 A.2d at 124-25, well before the Supreme Court’s constitutional "knock and announce” decisions, beginning with Wilson v. Arkansas, supra note 2, and Williams and Griffin are therefore binding on us under M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971). Subsequent Supreme Court cases which deal with constitutional questions, but which do not address at all the meaning of the dispositive statutory language, cannot fairly be viewed as rendering Williams and Griffin inoperative as precedents.

Footsteps away from the door suggest that there may have been a refusal to admit police; steps taken for a few seconds in some neutral direction do not. Because we conclude that there has been a statutory violation, we need not decide whether the Fourth Amendment standard is the same as the statutory one, cf. United States v. Ramirez, - U.S. -, --, 118 S.Ct. 992, 997-98, 140 L.Ed.2d 191 (1998), or whether the Constitution has been transgressed.