Douglas-Bey v. United States
Douglas-Bey v. United States
Opinion of the Court
Douglas-Bey contends the trial court erred in denying his motion to suppress physical evidence (and testimony relating thereto) which was seized from his apartment and that as a result, his conviction for felony murder and related offenses must be reversed. We agree and reverse.
Hennessy heard on his police radio that a man who had been shot had been found a short distance away. He headed in that direction only to observe other officers already there. He called for a crime scene search officer and remained in the first floor hallway of 711 Irving Street.
Lieutenants Dryden and Stiftar, who had also heard the radio run about the shooting, arrived at the apartment building. Hennessy advised them that he had searched the apartment and that no one was in it. The lieutenants went upstairs, entered the apartment and examined it. Dryden testified that the purpose of their entry into the apartment was to investigate further and try to find out what happened. (Tr. 45). They were not aware that an apparent victim had been found. During their examination of the apartment, Dryden noticed two bullets as well as two bullet holes.
While the lieutenants were still in the apartment, Gmitter, a crime scene search officer, entered. Dryden pointed out certain evidence including bullets, bullet holes and the blood covered bag. Gmitter made a number of photographs and seized physical evidence.
At trial, the government key witness was Edward Juhans who had pled guilty to conspiracy to rob Calvin Smith. According to Juhans, that robbery attempt took place in Douglas-Bey’s apartment with Douglas-Bey’s participation in the robbery leading to the shooting of Smith and Smith’s subsequent death from that shooting. The physical evidence which Douglas-Bey had attempted unsuccessfully to suppress, substantially corroborated Juhan’s testimony and tended to contradict Douglas-Bey’s testimony of what transpired.
Both sides agree that the entry and search by Hennessy was a valid emergency search within Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), and opinions of this court such as United States v. Booth, 455 A.2d 1351 (D.C. 1983), and that he could have seized those items which he saw in plain view. Id. at 1356 n. 8, citing Coolidge v. New Hampshire, 403 U.S. 443, 466-67, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). There, the agreement between the parties end.
The government contends that the second entry (the lieutenants) and the third entry (crime scene search officer) were also valid under the emergency exception to the warrant requirement. Alternatively they contend that even if we find the lieuten
Both sides point us to Mincey v. Arizona, supra, and its progeny, both in federal and state courts, including opinions of this court construing those cases.
In reversing, the Supreme Court rejected the attempts to distinguish Min-cey. It pointed out that the evidence had not been discovered or seized during the entry for the purpose of searching for a “victim or suspect” as contemplated by Mincey.
Reversed and Remanded.
. Appellant made two other claims of error, both of which we find meritless. He complains
Appellant also contends the trial court erred in denying his motion to dismiss for lack of speedy trial. We disagree. MacDonald v. United States, 456 U.S. 1, 10, 102 S.Ct. 1497, 1503, 71 L.Ed.2d 696 (1981); Robinson v. United States, 452 A.2d 354, 357 (D.C. 1982).
. The government also contends that the sandal, false teeth and bloody bag were in the plain view of Gmitter while he was still in the public hallway. However, the testimony of Gmitter never states that he, in fact, saw these items from the public hallway. Rather, on cross-examination, he testified he "could have seen” certain things and not others from the public hallway. (Tr. 54-55).
. The government also urges that Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), is controlling. We disagree.
. See, e.g., Mascólo, The Duration of Emergency Searches: The Investigative Search and the Issue of Re-entry, 55 N.D.L.Rev. 7 (1979).
. Since we reject the government’s "alter ego” doctrine, see Thompson v. Louisiana, supra, Mincey v. Arizona, supra, United States v. Dart, 747 F.2d 263, 265 (4th Cir. 1984), and United States v. Booth, supra, the fact that some of the evidence had been “discovered" by Hennessy during a lawful emergency entry is of no consequence. Of course, in a retrial, Hennessy could testify to all he saw during his initial entry into the apartment.
.We reject the government’s contention that the trial court correctly denied suppression under the “inevitable discovery” doctrine enunciated in such cases as Nix v. Williams, — U.S. -, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
The government argues that the crime scene search officer (Gmitter) would have inevitably found all the physical evidence. However, we have found Gmitter’s entry to have been unlawful. One of the requirements of the doctrine is that the lawful process which would have ended in the inevitable discovery have been commenced before the constitutionally invalid seizure. Id., United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984). No such process, i.e., on the facts of this case, an application for a search warrant, is shown to have been initiated.
Concurring Opinion
concurring:
. Thompson v. Louisiana, — U.S. -, 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).
Reference
- Full Case Name
- W. Steven DOUGLAS-BEY, Appellant, v. UNITED STATES, Appellee
- Cited By
- 21 cases
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- Published