Culp v. United States
Culp v. United States
Opinion of the Court
Appellant was convicted of two counts of armed robbery, D.C.Code §§ 22-2901, -3202 (1989), and one count of possession of a firearm during a crime of violence or dangerous offense, D.C.Code § 22-3204(b) (1989). Appellant argues on appeal that certain tangible evidence, including an imitation Uzi machine gun, should have been suppressed because it was seized during a search that violated the District of Columbia’s “knock and announce” statute, D.C.Code § 23-524(a) (1989).
I.
On November 26, 1990, at approximately 8:00 p.m., a man entered the Trak Auto store located at 318 Riggs Road, N.E., wearing a mask and carrying a Tropicana juice box. He walked to the parts counter, pulled an Uzi style machine gun
Store employees identified the appellant as the gunman from a photo array. It was then ascertained that the appellant resided at 611 Keefer Place, N.W. In addition, the police learned from an informant, who had personally observed the weapon, that the Uzi was present inside of the premises within the 24 hours preceding the search warrant application and that appellant had spoken of “doing a robbery.” Finally, appellant fit the description of the perpetrator of approximately eleven other robberies, all within the six weeks preceding the search, involving the use of an automatic weapon similar to the one used in the Trak Auto robbery.
The Special Operations Division’s Emergency Response Team (“ERT”) was requested to execute the warrant based on the potential for violence. When the ERT arrived at the appellant’s residence at 8:00 p.m. on December 4, 1990, approximately eight days after the Trak Auto robbery, they saw lights and heard voices coming from inside the home. Officer Grooms
Prior to trial, appellant, moving to suppress tangible evidence seized from the house in which he was arrested, challenged the search on three separate grounds: (1) that the search warrant was not supported by probable cause, (2) that the warrant was executed at nighttime but did not comply with the requirements of a nighttime search warrant, and (3) that the officers violated the knock and announce requirements of the D.C.Code. The motions judge rejected each claim and denied the motion. The judge found that exigent circumstances justified the forced entry after the passage of only five seconds because the nature of the weapon posed “a serious risk of injury to the police or other citizens. ...”
On appeal, the only claim presented is that the motions judge erred in concluding that the officers’ entrance did not violate the knock and announce requirements.
II.
It is well established that the “police may not forcibly enter a person’s house without prior announcement.” Williams v. United States, 576 A.2d 700, 703 (D.C. 1990) (citing Miller v. United States, 357 U.S. 301, 306-08, 78 S.Ct. 1190, 1194-95, 2 L.Ed.2d 1332 (1958) (“From the earliest days, the common law drastically limited the authority of law officers to break the door of a house to effect an arrest.”)). When executing a search warrant at a residence, the police must knock and notify the occupants of the police authority to search the home, D.C.Code § 23-524(a) (incorporating 18 U.S.C. § 3109). This court’s interpretation of the knock and announce provision in § 33-565(g), which is virtually identical to its federal counterpart, 18 U.S.C. § 3109, and federal circuit courts interpreting that provision, have recognized two broad exceptions to the knock and announce requirement. The first exception allows police to enter without delay if the police can reasonably infer from the actions or inactions of the occupants that they have been refused admittance.
Our review of appellant’s challenge to the trial court’s determination that exigent circumstances justified the police intrusion must afford the government “all legitimate inferences from the testimony and uncon-troverted facts of record,” United States v. Covington, supra, 385 A.2d at 166 (quoting Jenkins v. United States, 284 A.2d 460, 462 (D.C. 1971)), if those inferences are
In the present case, the issue before the motions judge in determining exigency was whether the evidence satisfied an “objective test ... which calls for a ... judicial evaluation whether those circumstances support a legal conclusion of ... exigent circumstances_” United States v. Bonner, 277 U.S.App.D.C. 271, 278, 874 F.2d 822, 829 (1989). The test is how a reasonable and experienced officer would respond under these circumstances. See Williams v. United States, supra, 576 A.2d at 704 (citing United States v. Bonner, 277 U.S.App.D.C. at 278, 874 F.2d at 829). Applying these principles, the trial judge found that:
these officers were acting reasonably] in concluding after a very short passage of time that there was an exigent need to enter those premises by force immediate[ly] in order to avoid ... what was believed to be a serious risk of injury to the police or other citizens in the execution of that warrant.
The trial judge noted five factors that taken together justified the officers’ determination that exigent circumstances necessitated their forced entry. First, the police were executing a warrant that had grown out of an investigation for at least twelve armed robberies in which the perpetrator used a weapon described as an Uzi type machine gun. Appellant had been linked to all of those robberies by identification evidence of one kind or another. Second, the information that the appellant was using drugs increased police concern about executing the warrant. Third, the ERT had reviewed the application and “made its own independent judgment that it was an appropriate warrant for them to execute because of the danger to citizens and law enforcement personnel ... reasonably posed by appellant in those premises and the weapons accessible to him.” Fourth, if appellant believed the police were there for him, he might act in a desperate way to avoid apprehension and use the weapon that was at his disposal or the weapon police believed was at his disposal. Fifth, and according to the trial court the most significant reason, “this wasn’t just any kind of weapon, it was an automatic or at least semiautomatic machine gun type weapon which was capable of inflicting tremendous damage in a very short period of time before the officers could adequately defend themselves.” The trial judge concluded that there was danger to the officers, stating:
while there is not the kind of scurrying through the house which the officers could conclude was an attempt to destroy evidence or obtain weapons that other cases have pointed to as exigent circumstances justifying an immediate entry, for all the police knew Mr. Culp didn’t have to scurry anywhere to get his Uzi weapon because it was immediately available to him....
We have recognized that the purpose of the knock and announce statute is to protect and encourage police safety. Williams v. United States, supra, 576 A.2d at 706. In Williams, however, we also recognized that there are circumstances “where the police officers’ safety is better protected by immediate forced entry, than by rigid adherence to the knock and announce requirement.” Id. Our review of the record persuades us that the trial judge did not err in concluding that exigent circumstances justified the police action taken here.
It is clear from the record that when the ERT arrived at appellant’s residence they knew that he was suspected of committing as many as twelve robberies, each using an Uzi type weapon. They also knew that appellant had used the weapon to take a human shield to ensure safe escape after committing the latest robbery and in one previous robbery had “racked the action,” i.e., moved bolts on top of the gun in a threatening manner. The ERT had also learned, from a person who had seen the weapon, that the Uzi had been seen on the Keefer Street premises within the past twenty-four hours and appellant
For the reasons stated, we find that the police action was warranted under these circumstances and the trial court properly denied the appellant’s motion to suppress the evidence.
Accordingly, the judgment is
Affirmed.
.In their briefs, both appellant and the government relied on the "knock and announce” provision set forth in D.C.Code § 33-565(g) (1988). That provision, however, is only applicable to search warrants for controlled substances. The statute which governs the search in question here, D.C.Code § 23-524, incorporates section 3109 of title 18 of the United States Code which provides:
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.
18 U.S.C. § 3109 (1991). This language is nearly identical to that of D.C.Code § 33-565(g), which differs only in that it does not include the language after the word "admittance."
. According to a police witness, an Uzi machine gun carries "at least 32 rounds of ammunition ... which [are] fired ... at rapid velocity” (sic).
. The police documented the similarities in the descriptions of the perpetrator(s) of all twelve crimes in a "flow chart” attached to the affidavit in support of the nighttime search warrant. Our own examination of these descriptions persuades us that the police had reasonable grounds for suspecting that appellant had committed all or most of them.
. Although the gun was a plastic imitation of an Uzi submachine gun, Detective Steven Mann testified that visually it was identical to a real weapon. Mann testified that the only difference is that a real gun is heavier. We agree with the trial judge who observed:
Just as it is inappropriate to use things that were discovered after the search to justify the basis for the search in the first place, it is also inappropriate to use things that were discovered after the search to invalidate a search that was otherwise proper at its inception. And, therefore, it is not proper for a reviewing court to consider the fact that the Uzi turned out to be a toy gun or that the people in the premises were not, in fact, armed with any weapons when they finally got inside.
. The trial judge also found that the entry after only a five second delay was supported by the constructive refusal of the occupants to open the door. Since we hold that the entry was supported by exigent circumstances, we do not address the constructive refusal finding by the trial judge.
. The search warrant was executed eight days after the Trak Auto robbery in which the assailant had used an automatic weapon. We do not believe that this lapse of time diminishes the exigency since the police had very fresh information that the Uzi was seen on the premises.
. Nor is it without significance that the police indisputably knocked and announced their authority and purpose, meeting one of the requirements of 18 U.S.C. § 3109. In United States v. Bonner, supra, in which the police had similarly announced their authority and purpose, and the issue was whether exigent circumstances justified their hasty entry, the court explained:
Whether the exigency is sufficient to justify the officers’ challenged behavior turns upon the extent and nature of the departure that must be justified. The exigency required to justify a warrantless search differs from that required to excuse noncompliance with section 3109’s announcement provision. That degree of exigency is, in turn, greater than that needed to excuse noncompliance with only the refusal portion of section 3109.
277 U.S.App.D.C. at 275, 874 F.2d at 826 (emphasis added). At least where a crime of violence is the subject of the search warrant, as here, we agree that the extent of departure from the statute’s commands is relevant to the showing of exigency required.
Concurring Opinion
concurring:
I concur in the result reached by the majority in this case, and I write separately because of the importance of using the proper analysis to reach that result. Here, the exigency turns not simply on the possession of a Uzi by a suspected armed robber, but on the fact that the police made a reasonable effort under the circumstances to comply with the statutory requirement that they knock and announce before forcibly entering appellant’s home. With knowledge of appellant’s past aggressive use of the Uzi, the trial judge could properly find that the police could reasonably conclude that waiting longer than five seconds after announcing their presence and purpose would endanger their safety.
The Supreme Court has long recognized that the historical roots of the privacy interests in one’s home compel judicial restraint in carving out exceptions to the knock and announce requirements. Thus, in Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197, 2 L.Ed.2d 1332 (1958), the Court stated that “[t]he requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given a grudging application.” See Sabbath v. United States, 391 U.S. 585, 589, 88 S.Ct. 1755, 1758, 20 L.Ed.2d 828 (1986) (same). Following the federal courts’ interpretation of the federal statute, which is identical to the District of Columbia knock and announce statute, this court has recognized two broad exceptions to full compliance with the requirements of the statute. The first exception is based on the avoidance of mere ritual, where constructive refusal to permit entry can be reasonably inferred by the police from the action or inaction of the occupants, and the second exception arises from the exigencies of law enforcement, permitting the police to enter forcibly “without fully complying with the knock and announce statute” in order to avoid the imminent destruction of evidence or some danger to the entering
The government’s burden to show the nature of the exigency increases, however, to the extent that the police fail to comply with the knock and announce statute. See United States v. Bonner, 277 U.S.App.D.C. 271, 275, 874 F.2d 822, 826 (1989) (citing United States v. Harris, 140 U.S.App.D.C. 270, 435 F.2d 74 (1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 152 (1971); Masiello v. United States, 115 U.S.App.D.C. 57, 317 F.2d 121 (1963); accord, United States v. Bustamante-Gamez 488 F.2d 4, 11-12 (9th Cir.), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974)). Hence, a critical fact in the instant case is that the officers knocked and announced their identity and waited five seconds before forcing their entry into appellant’s home. Otherwise, the majority opinion could be misconstrued to stand for the proposition that whenever a semi-automatic firearm is involved, the police have exigent circumstances permitting a forced entry into a criminal suspect’s home without reference to the knock and announce requirements. See majority opinion at 463; see also id. 464 at n. 7. But that is not the law.
The decision of the United States Court of Appeals for the District of Columbia Circuit in Bonner, supra, 277 U.S.App.D.C. 271, 874 F.2d 822, is instructive.
The trial judge in the instant case found that the police officers could reasonably conclude that they had been refused admittance. The judge reached this conclusion, however, as appellant points out, without meaningful review of whether the officers complied with the knock and announce stat
The majority does not address the trial judge’s finding of refusal of admittance because it concludes that the presence of the Uzi created exigent circumstances. See majority opinion at 462 n. 5 and 463. Nevertheless, the trial judge’s finding— that after five seconds followed by silence the police could reasonably conclude that they had been denied admittance — cannot be sustained on the record before us: five seconds would not generally afford the occupants sufficient time to open the door voluntarily. See, e.g., Masiello, supra, 115 U.S.App.D.C. at 58, 317 F.2d at 122 (refused admittance not restricted to affirmative refusal); United States v. James, 528 F.2d 999, 1017 (5th Cir. 1976) (“[failure to respond within a reasonable time was tantamount to a refusal”; after 80 seconds and two announcements for the occupants to exit the house, police fired tear gas into the house); see also Griffin, supra, 618 A.2d at 122 (no authority cited in which delay of only 30 seconds in early morning hours sufficient in absence of some suspicious activity following arrival of police, or some other equivalent circumstance); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795, 798 (Pa. 1968) (20 seconds delay in answering door not refused admittance). In view of the evidence that the conversation of persons within the house stopped after the police knocked and announced, it was for the trial court to make findings on whether or not the occupants could have called out in response to the knock in so brief a time or whether they could only have been able to internalize the fact that someone was at the door. In the absence of any findings by the trial judge, the record here, as in Williams, does not support the conclusions that the police had waited long enough to decide that there was a
Hence, the question is whether the government has met its burden to show exigent circumstances. The instant case involves the presence of an automatic weapon which the police were informed was kept in the rafters in the basement of the house. However, there was nothing to suggest to the police that their presence had been detected by the persons inside the house before the police announced their presence by knocking on the front door. See, e.g., United States v. Spinelli, 848 F.2d 26, 29-80 (2d Cir. 1988). The quick police entry was also not based on a concern about the destruction of evidence. See, e.g., United States v. Nabors, 901 F.2d 1351 (6th Cir. 1990); United States v. Barrientos, 758 F.2d 1152 (7th Cir. 1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 810, 88 L.Ed.2d 785 (1986). Nor was there information that an armed guard would be sitting by the front window, or that more than one gun was inside the house much less that there was any illegal activity going on in the house. See, e.g., Williams, supra, 576 A.2d 700. After the police knocked, moreover, they did not hear any noise in response to their knock; rather, there was silence during the five seconds before the police forced their entry. Thus, as appellant points out, the finding of exigency was unsupported by facts providing a reasonable belief that the occupants of the house were attempting to destroy evidence or resisting apprehension. In that sense, the exigency found by the trial judge here is less than the exigency found in Williams, supra 576 A.2d 700, and the extent of the departure from the statutory requirements is greater since the police only knocked and announced on one occasion and then waited only five seconds.
The trial judge recognized that the presence of the Uzi inside the house was not by itself sufficient to create exigent circumstances without regard to the knock and announce requirements of the statute. The judge found that:
[the] officers did knock, did announce their authority and purpose in a way that was reasonably calculated for the people inside to hear it and to understand their purpose there. And the exigent circumstances presented at that moment therefore justified ... the immediate entry after the passage of only five seconds even if the passage of five seconds was not sufficient for them to have concluded that their entry was being denied.... And in my judgment these officers were acting reasonable [sic] in concluding after a very short passage of time that there was an exigent need to enter those premises by force immediate [sic] in order to avoid ... what was believed to be a serious risk of injury to the police or other citizens in the execution of the warrant.
Clearly, knowledge of the presence of an Uzi machine gun in the basement rafters did not suffice to give the police grounds to break into appellant’s home. See Nabors, supra, 901 F.2d at 1354 (although circumstances of a felon drug trafficker in possession of array of firearms who habitually wore a bulletproof vest, showed threat to police and others’ safety, and the need to conserve narcotics evidence justified forced entry moments after knocking and announcing, “[w]e do not hold ... that every time law enforcement personnel suspect that the subject of a search warrant pos
Nevertheless, in view of the heightened capacity of an Uzi to inflict lethal injury, see majority opinion at 461 n. 2, the police had reason to be particularly concerned that they enter before anyone inside had an opportunity to inflict serious injury on officers or others. Fear of violence had caused the police to use the Emergency Response Team and to seek a nighttime warrant. The members of the Emergency Response Team thought that the Uzi was real, not an imitation. While the five second delay was insufficient to constitute a constructive refusal of entry, the police could reasonably conclude that the fact that they had knocked and announced their presence and purpose heightened a potentially dangerous situation. See Bonner, supra, 277 U.S.App.D.C. at 275-76, 874 F.2d at 825-26. The lights were on in the house and the police had heard people talking in the house. The information that a Uzi was in the house was only twenty-four hours old and the police had reason to believe that appellant contemplated committing another armed robbery, and thus was likely still to have the Uzi in his home. The police also had reason to believe that appellant had used a human hostage during a prior robbery with the Uzi. Contrary to appellant’s contention, the police were not simply acting on a mere “generalized belief” that the Uzi might be immediately available to appellant if they waited longer before entering the home. As the majority points out, see majority opinion at 463, supra, the trial judge relied on five circumstances as supporting a finding of exigent circumstances, including that the police had information that appellant made personal use of illegal drugs.
Under all of the circumstances, therefore, and consistent with our standard of review,
. In that case, the police knocked and announced three times, on two separate occasions, and upon hearing footsteps running from the apartment, where cocaine was suspected of being sold, they used a battering ram to force open the door after a total of eleven to twelve seconds had passed. Id. at 272, 275, 874 F.2d at 822, 825. The court noted that “a few additional seconds’ delay clearly would have supported the conclusion that the officers had been refused admittance.” Id. at 276, 874 F.2d at 826. Nevertheless, the court concluded, on the basis of the five circumstances, that the officers had reasonably concluded they had been refused admittance. Id., 874 F.2d at 825. See United States v. DeLutis, 722 F.2d 902, 909 (1st Cir. 1983) (upholding forced entry after 20 seconds delay) (and cases surveyed).
. See generally, Marvin Owen Meier, Annotation, What Constitutes Violation of 18 USC § 3109 Requiring Federal Officer to Give Notice of his Authority and Purpose Prior to Breaking Open Door or Window or Other Part of House to Execute Search Warrant, 21 A.L.R. Fed. 820, 856-61 (1974).
. The trial judge stated:
I would conclude that it is inappropriate for me as the reviewing judge to second guess by a matter of a split second here or there whether five seconds was sufficient or the police should have instead waited six seconds or ten seconds before reasonably concluding that they were not going to be allowed in. And in my judgment those distinctions are simply too fine to be made.
. See, e.g., Rodriguez, supra, 663 F.Supp. at 587 (forcible entry 3 to 5 seconds after knock and announce where police heard sounds from within creating reasonable belief that suspects would attempt to escape, resist, or destroy evidence); United States v. Rummer, 786 F.2d 381 (10th Cir. 1986) (entry 5 to 10 seconds after knock and announce where police saw figure leaving room); United States v. Wysong, 528 F.2d 345 (9th Cir. 1976) (entry into motel room 5 to 10 seconds after knock and announce after observing illegal drug sale in motel room); McClure v. United States, 332 F.2d 19 (9th Cir.) (entry 4 to 5 seconds after knock and announce where police were seen approaching house and heard footsteps after knocking and announcing and feared escape of defendant), cert. denied, 380 U.S. 945, 85 S.Ct. 1027, 13 L.Ed.2d 963 (1965).
. See Williams, supra, 576 A.2d at 703 ("afford[ing] the government 'all legitimate inferences from the testimony and uncontroverted facts of record’ and 'accept[ing] the inferences drawn by the trial court as to the facts before it, if they are supportable under any view of the evidence'”) (citations omitted).
Reference
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- Bernard CULP, Appellant, v. UNITED STATES, Appellee
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