ORAL ARGUMENT NOT YET SCHEDULED



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT







NO.







UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxx, Defendant-Appellant.





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA







APPENDIX FOR APPELLANT











A. J. KRAMER

FEDERAL PUBLIC DEFENDER



ALLEN E. BURNS

Assistant Federal Public Defender

Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500









Cr. No.







TABLE OF CONTENTS



TABLE OF AUTHORITIES iii



STATUTES AND RULES 1



JURISDICTION 1



ISSUES PRESENTED 1



STATEMENT OF THE CASE 2



Procedural Background 2



Statement of the Facts 3



The Motion to Suppress Physical Evidence 3



The Trial 11



The Government's Case 11



The Defense's Case 18



The Government's Rebuttal Evidence 21



SUMMARY OF ARGUMENT 25



ARGUMENT 26



POINT I:



THE SEARCH WARRANT FOR THE ENTIRE BUILDING WAS OVERBROAD AND ITS EXECUTION UNREASONABLE BECAUSE THE SUPPORTING AFFIDAVIT ONLY PROVIDED PROBABLE CAUSE TO SEARCH THE PART OF THE BUILDING WHERE A DRUG PURCHASE HAD ALLEGEDLY BEEN MADE, IT DID NOT DESCRIBE THAT PLACE WITH THE PARTICULARITY EXPLICITLY REQUIRED BY THE FOURTH AMENDMENT, AND THE BUILDING IN FACT CONTAINED AN OFFICE AND THREE SEPARATE RESIDENTIAL UNITS 26



The Standard of Review 26



The Overbreadth of the Search Warrant 26



The Unreasonableness of the Execution of the Warrant 32



POINT II:



THE EXECUTION OF THE SEARCH WARRANT VIOLATED 18 U.S.C. 3109 BECAUSE THE OFFICERS FORCIBLY ENTERED THE BUILDING IN CHINATOWN AFTER ANNOUNCING THEIR AUTHORITY AND PURPOSE ONLY IN ENGLISH, AND THE RESIDENT THEY FOUND INSIDE ONLY SPOKE CHINESE 33





The Standard of Review 33



The Inadequacy of Notice in English in a Community Where Knowledge of English Cannot Reasonably be Presumed 34



POINT III:



THE GOVERNMENT FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE PRERECORDED POLICE MONEY WOULD INEVITABLY HAVE BEEN DISCOVERED ABSENT MR. xxxxx'S STATEMENT, CONCEDEDLY OBTAINED IN VIOLATION OF HIS MIRANDA RIGHTS, AS TO WHERE IT WAS HIDDEN 36



The Standard of Review 36



POINT IV:



THE JUDGE ERRED AT TRIAL IN PERMITTING THE GOVERNMENT TO INTRODUCE, IN ITS REBUTTAL CASE, EVIDENCE THAT COCAINE BASE AND DRUG PARAPHERNALIA NOT ENCOMPASSED BY THE CHARGED OFFENSES WERE FOUND IN MR. xxxxx'S THIRD-FLOOR LIVING QUARTERS AND BASEMENT 40



The Standard of Review 40



The Improper Rebuttal Evidence 40



CONCLUSION 42



ADDENDUM A-1







TABLE OF AUTHORITIES



Agnello v. United States,

269 U.S. 20 (1925) 40



Griffin v. United States,

618 A.2d 114 (D.C. App. 1992) 33



Maryland v. Garrison,

480 U.S. 79 (1987) passim



Miller v. United States,

357 U.S. 301 (1958) 34



Nix v. Williams,

467 U.S. 431 (1984) 36, 37



Rivera v. United States,

928 F.2d 592 (2d Cir. 1991) 34



United States v. Casamento,

887 F.2d 1141 (2d Cir. 1989) 40



United States v. Childs,

598 F.2d 169 (D.C. Cir. 1979) 40, 42



United States v. Dorsey,

591 F.2d 922 (D.C. Cir. 1978) 29, 30



United States v. Gale,

952 F.2d 1412 (D.C. Cir. 1992) 36, 37



United States v. George,

971 F.2d 1113 (4th Cir. 1992) 39



United States v. Higgins,

428 F.2d 232 (7th Cir. 1970) 31



United States v. Hinton,

219 F.2d 324 (7th Cir. 1955) 10, 29, 31



United States v. Leichtnam,

948 F.2d 370 (7th Cir. 1991) 34



United States v. Ramos,

923 F.2d 1346 (9th Cir. 1991) 33



United States v. Taylor,

997 F.2d 1551 (D.C. Cir. 1993) 26



United States v. Votteller,

544 F.2d 1355 (6th Cir. 1976) 31, 32




United States v. Winston,

447 F.2d 1236 40



United States v. $638,558.00 in U.S. Currency,

955 F.2d 712 (D.C. Cir. 1992) 36, 37







STATUTES AND RULES



18 U.S.C. 3109 1, 3, 33, 34



21 U.S.C. 841(a)(1) and 841(b)(1)(B)(iii) 2





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________________________________________



NO.

_____________________________________________



UNITED STATES OF AMERICA,



Appellee,



v.



WELLINGTON xxxxx,



Appellant.

_____________________________________________



BRIEF FOR APPELLANT

_____________________________________________



STATUTES AND RULES



Pursuant to Fed. R. App. P. 28(f) and Circuit Rule 28(a)(5), pertinent statutes and rules are set forth in the addendum to this brief.



JURISDICTION



The District Court had jurisdiction under 18 U.S.C. 3231. A notice of appeal having been timely filed, this Court has jurisdiction pursuant to 28 U.S.C. 1291.



ISSUES PRESENTED



1. Whether the search warrant for the entire building was overbroad because the supporting affidavit only provided probable cause to search the part of the building where a drug purchase had allegedly been made, it did not describe that place with the particularity explicitly required by the Fourth Amendment, and the building in fact contained an office and three separate residential units.

2. Whether the execution of the search warrant violated 18 U.S.C. 3109 because the officers forcibly entered the building in Chinatown after announcing their authority and purpose only in English, and the resident they found inside only spoke Chinese.

3. Whether the Government failed to prove by a preponderance of the evidence that the prerecorded police money would inevitably have been discovered absent Mr. xxxxx's statement, concededly obtained in violation of his Miranda rights, as to where it was hidden.

4. Whether the judge erred at trial in permitting the Government to introduce, in its rebuttal case, evidence that cocaine base and drug paraphernalia not encompassed by the charged offenses were found in Mr. xxxxx's third-floor living quarters.

STATEMENT OF THE CASE

Procedural Background

In a ten-count indictment, Mr. xxxxx was charged with distribution of cocaine base on five dates (Counts One - Five) in violation of 21 U.S.C 841(a)(1) and 841(b)(1)(B)(iii), with attempted distribution of cocaine base on another date (Count Six) in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(B)(iii), and 846, and with using a telephone to facilitate distribution of cocaine base on four occasions related to the foregoing allegations (Counts Seven - Ten) in violation of 21 U.S.C. 843(b). Following a pretrial hearing and the denial of Mr. xxxxx's motion to suppress physical evidence, a seven-day jury trial took place, at the conclusion of which Mr. xxxxx was found guilty as charged. On December 22, 1992, the judge imposed concurrent prison sentences of 121 months--the Guideline minimum--for the distribution and attempt convictions, and of 48 months for the related telephone use convictions, the prison sentences to be followed by concurrent supervised release terms of four years on Counts One through Six and one year on Counts Seven through Ten, and a special assessment of $50 for each of the ten convictions.

Statement of Facts

The Motion to Suppress Physical Evidence

Mr. xxxxx's motion to suppress physical evidence seized in the execution of a search warrant was the only one of his pretrial motions upon which his counsel requested a hearing (H. 4). (1) In the written motion, Mr. xxxxx asserted two grounds for suppressing the evidence. First, he argued that the search warrant for the entire building was overbroad because its supporting affidavit failed to specify where in the building--which he asserted contained three apartments and an office--the one alleged drug purchase there had taken place (A. 26). (2) Second, Mr. xxxxx asserted that the execution of the search warrant violated the statutory requirement (18 U.S.C. 3109) that police announce their identity and purpose and be refused entry before entering forcibly (A. 27).

The Government's written opposition to the motion contended, initially, that the building was "inaccurately" characterized by the defense as an "apartment building" (A. 32). Allegedly, the "cooperating individual" ("CI") who claimed to have bought drugs from Mr. xxxxx had been told by him during a taped conversation that "the building had at one time been an apartment building, but that he and his brother had remodeled it" (A. 32). (3) However, the Government went on to state that Mr. xxxxx refused to rent to the CI the unspecified part of the building they were discussing both because Mr. xxxxx was using it as an office and because his mother stayed in the building, and, as well, that in searching, the police found that Mr. xxxxx resided on the third floor (A. 32).

The Government further asserted that in executing the warrant the police had properly knocked and announced their purpose and waited about 30 seconds before entering the premises with a key (A. 32-33). In addition, the Government acknowledged that the prerecorded police funds had been recovered from the building after the defendant had told the police their location in a statement concededly taken in violation of his Miranda rights, but it declared that the money would inevitably have been discovered in the search pursuant to the warrant (A. 31, 33, footnotes 1, 3).

The affidavit that Investigator Todd Williams submitted to the magistrate judge in support of the search warrant application sought authority to search the entire four-story rowhouse at xxx H Street, N.W. (A. 19). It described alleged sales by Mr. xxxxx to the CI (whom it called the "special employee" or "Se") on February 13 and 19, March 2 and 23, and April 1, 1992, but the premises to be searched only figured in the account of the transaction that culminated on March 23. On March 18, 1992, when the CI had allegedly gone to make a purchase at the Fulton Hotel, at xxxx Street, N.W., Mr. xxxxx had called him there and told him to leave the money in the mailbox at xxx H Street, but the CI had declined "and made arrangements to meet Wellington xxxxx at a later date" (A. 18). Then on March 23, 1992, when the CI went again to meet Mr. xxxxx at the Fulton Hotel, Mr. xxxxx allegedly called and told him to go to xxx H Street (A. 18). The affidavit continued,

Once there Se was met by xxxxx at the first floor entry door and taken inside. Se handed xxxxx $600.00 dollars (sic) in pre recoreded (sic) MPDC funds and xxxxx returns (sic) a plastic bag contained a white rock like substance. xxxxx told Se that the house was his office and not his home.

(A. 18) The crack purchased weighed 13.4 grams (A. 18).Without setting forth any other alleged facts about xx H Street, the affidavit stated,It is your affiants (sic) belief that Wellington xxxxx utilizes the premises of xxx H Street, N.W., Washington, D.C. as a place to store and maintain large quantities of illegal narcotics, and that there is now secreted within the premises of xxx H St, N.W., D.C., illegal narcotics . . . This belief is based on the fact that Wellington xxxxx arranged for the durg (sic) transactions on several occasions with SE at a nearby location of 512 I St, N.W., which is within walking distance of xxx H St, N.W. Also on one occasion when the drug deal was not consumated (sic), xxxxx requested that Se place the money for the drug deal in the mailbox at xxx H St N.W. which Se refused to do. Finally, on the March 23 transaction xxxxx completed the drug transaction (sic) within the premises of xxx H St, N.W.



(A. 19). The affiant also assertedly believed Mr. xxxxx kept, not only prerecorded police funds, but also an illegal firearm at xxx H Street, because he had told the CI he was going to shoot someone and said he had a connection to buy guns in Kentucky, and in the affiant's experience, he claimed, drug traffickers would keep drugs, guns, drug paraphernalia, and records together (A. 19). Accordingly, the affidavit recited as objects of the search "any and all narcotics, narcotics paraphernalia, books, papers, records evidencing the distribution of narcotics, assets derived from the proceeds of narcotic trafficking [,] proof of residency or occupancy of the premises, illegal firearms, prerecorded MPDC funds, and all other currency located on the premises (A. 19).

At 3:30 p.m. on April 8, 1992 the warrant was issued to search the "entire premises" of the "four story rowhouse" at xxx H Street, N.W. (A. 20). The magistrate judge did not grant the police request that execution of the warrant after 10:00 p.m. be permitted (A. 19); thus, the time for service of the warrant and execution of the search was restricted to the hours between 6:00 a.m. and 10:00 p.m. (A. 20). (4)

At the motion hearing, the Government presented two witnesses: Sergeant John Hickey, who participated in the pre-arrest surveillance of Mr. xxxxx and of xxx H Street and helped Investigator Williams prepare the affidavit for the search warrant application; and Sergeant Thurman J. Dade, who took part in the search and personally discovered the prerecorded funds.

Hickey testified that he and Williams reviewed the videotapes of the prior alleged transactions between the CI and Mr. xxxxx, the "paperwork on the case," and all the other evidence in preparing the affidavit (H. 11). He testified that xxx H Street appeared to him to be a "family residence," and that he had heard taped conversations between the CI (Jesse Moses) and Mr. xxxxx to the following effect:

He said that it used to be an apartment building, but that he had remodeled it and that it was now being used as an office by himself and his brother and that on a later tape, he discussed that when his mother would come down to visit down in Chinatown, she would also stay there in the building.



(H. 12) On cross-examination, Hickey said he did not recall seeing doorbells near the front door of xxx H Street (as depicted in Defendant's Exhibits 1-E and 1-F), but he acknowledged they could have been there, and he acknowledged that he did not know to which floor the conversation about the visits of Mr. xxxxx's mother referred (H. 17-19).

Sergeant Dade testified that in supervising the execution of the search warrant on April 8, 1992, he knocked loudly three times on the front door, announced loudly, "Police, we have a search warrant, open the door," waited about 20 to 30 seconds, and, as there was no response, opened the front door with the key, and entered with the search team (H. 22). He did not notice any doorbells on the front of the building (H. 23). He went directly into a "room" on the right inside the front door that "looked like it was set up as an office" and from there, he went through a kitchen and down to the basement, which also had an outside entrance in the front of the house (H. 23, 35).

On the second floor, in addition to a kitchen and a bath, Dade found a locked room, and when the room's occupant refused to open it, the police broke in (H. 24). They "secured" that room for safety purposes, but did not search there for evidence (H. 25). The occupant spoke no English (H. 33). Through a neighbor the police brought in to act as an interpreter, the occupant told police that he rented the room from Mr. xxxxx, who used the office downstairs and lived upstairs (H. 34). Dade believed he also said that "a son" may have "come by there sometimes" (H. 33-34).

The police went to the building's third floor and found there another kitchen and a bedroom where they discovered personal papers of Mr. xxxxx and, Dade believed, "some paraphernalia" (H. 25, 31). (5) During the search of the office on the first floor, Dade had a telephone conversation with the officer at the stationhouse who was processing Mr. xxxxx following his arrest, and that officer told Dade that Mr. xxxxx had told him that the money was under a box on a shelf in the office (H. 28). Dade hung up and went over to a shelf, picked up a box on it, and found the money (H. 28). At the time, Investigator Rex Plant was searching other, higher shelves from the top down; the shelf where the money was concealed, according to Dade, "was probably the second to next shelf he would have searched" (H. 28).

The prosecutor again conceded that the information about the money's location was obtained in violation of Mr. xxxxx's Miranda rights, but he argued that the money "was going to be discovered in any event by an officer" (H. 26). Defense counsel did assert that his suppression motion extended to the "fruit of the poisonous tree," and apparently the judge recognized that Mr. xxxxx was seeking suppression of the money on that ground, too (H. 27).

The defense presented the testimony of Tak Kwong Ng, who had resided with his wife on the second floor of xxx H Street since November, 1990 (H. 46). From the time when he moved in until April 8, 1992, there had always been three doorbells at the entrance to xxx H Street, one bell for each floor (H. 47-48). Mr. xxxxx lived on the third floor, and his younger brother lived on the first floor and also used the office (H. 47, 50). When the police came on April 8, 1992, Mr. Ng refused to open his door because he spoke no English and did not know who they were (H. 54, 55). He had not heard them knock on the downstairs door (H. 55). Through the interpreter, after the police broke into his room, he told the police that Mr. xxxxx lived upstairs (H. 54-55).

The defense also proffered the testimony of Eddie xxxxx, the defendant's brother, that the house in question was a multiple dwelling "listed" as such, and that he lived there part of the time (H. 59). The judge asked the prosecutor if he would dispute that the witness would so testify, and when the prosecutor did not do so, the judge accepted the proffer "as a factual statement of what that witness would testify" and told defense counsel to excuse him (H. 59-60).

In support of the motion to suppress, defense counsel argued primarily that the police failed to "make a good faith effort" to give notice to the residents of this multiple dwelling in Chinatown, suggesting that they should have used a Chinese speaker (H. 61). Counsel also referred to the lack of information the police obtained about the building to support the "blanket search warrant" (H. 61).

When the prosecutor argued against the contention that there were doorbells, the judge indicated he would have difficulty resolving that issue and asked the prosecutor to assume for purposes of argument that there were three doorbells (H. 62-63). The prosecutor then argued that the existence of doorbells would not undermine the reasonableness of the officers' understanding, based on Mr. xxxxx's assertion to the CI, that the building was no longer an apartment building because it had been remodeled (H. 63). Further, the prosecutor suggested that the police acted reasonably, because they ceased their search of the second floor after discovering Mr. Ng there (H. 63). He relied on Maryland v. Garrison, 480 U.S. 79 (1987) (H. 62, 64).

The judge apparently concluded that Mr. xxxxx's rights were not violated by the conduct of the "knock and announce" because he was not present at the time (H. 64). He went on to distinguish the case of United States v. Hinton, 219 F.2d 324 (7th Cir. 1955), cited by the defense, observing that there, the searching officers found four different families on the different floors, while here, the judge was satisfied by the evidence that Mr. xxxxx "occupied the top floor and used the bottom floor as his office" (H. 64-65). Notwithstanding the residence in the building of "somebody other than the defendant who may or may not be affiliated with the defendant," he concluded that the affidavit justified the issuance of a warrant to search the whole building, and he denied the motion (H. 68).

The Trial

The Government's Case

The Government's case-in-chief against Mr. xxxxx consisted most significantly of the testimony of Sergeant John Hickey and Confidential Informant Jesse Moses, both of whom testified about all the alleged transactions, and of the video-audio tapes made during the alleged transactions. The transcripts of the tapes were not admitted as evidence, but they were marked as Government's exhibits for identification, were read by the jury during the playing of the tapes in court, and were used by counsel for both sides in examining witnesses. Assuming their accuracy for purposes of this appeal, the transcripts are referred to herein as the most practical guides to the content of the tapes. They are fully set forth in the Appendix submitted herewith.

Jesse Moses became an informant cooperating with the police and the FBI as a result of his being arrested in January, 1991 and charged with distribution of crack and possession with intent to distribute more than five grams of crack--a "substantial amount" (I 47; II 27; IIA 12-13, 17; IVA 41). (6)

He had been given work release in July, 1991 (IVA 43-44). He was facing a statutory prison sentence of 5 to 40 years and a 10-year Guideline minimum if he did not receive a downward departure as a result of his cooperation with the Government (IIA 17; IVA 45-46). As of the time he testified, he had pleaded guilty to the charge of possession with intent to distribute pursuant to his cooperation agreement, but the Government had not yet filed a letter asking the court to depart downward (IVA 51). Moses had been paid $1400 for expenses by the police, and $1500 by the FBI (IIA 21-22).

Shortly before the operation against Mr. xxxxx began, Moses had again been arrested in the District of Columbia--on a Louisiana warrant for violating his probation there (IIA 12, 19). After that arrest, he asked an officer (who it happened would participate in the operation against Mr. xxxxx), to pick up about $800 that he had left in a table or dresser drawer in a hallway at the Fulton Hotel; the officer retrieved the money, but with it he found and seized a film canister containing 21 ziplock bags and crack (IIA 18; IVA 47-48; V 52-55). Moses was allegedly not charged with possession on this occasion because the drugs had been found in a common hallway (V 55). Moses did have other prior convictions in Louisiana, one of which was felony theft (IIA 11), and a gun possession charge against him here had been informally "no-papered" due to his cooperation (IIA 20). Asked on cross-examination how many drug sales he had made in 1990 and in 1991 before his arrest on the charges underlying his guilty plea, he said he had "no idea" (IVA 14, 16).

Sergeant Hickey conceded that during his surveillance on the

five occasions on which Mr. xxxxx allegedly sold drugs to Moses, he (Hickey) never saw the drugs passed from the former to the latter (II 43), no other officer testified to seeing a transfer of drugs, and no tape showed a transfer (IVA 31). (Three alleged transactions took place indoors, where there was no video coverage.) Thus, Moses himself was the only person who presented direct evidence that Mr. xxxxx committed the alleged distributions. Moreover, in Moses' alleged telephone conversations with Mr. xxxxx, only Moses' voice was recorded (IVA 31).

Hickey also conceded that Moses' car and room had never been searched before the alleged transactions, and that Moses had made taped purchases from other persons in the hotel (II 41-42, 56, 61). Moreover, Moses was free to do as he pleased without surveillance except during police buy operations; the police lacked the manpower to keep him under constant surveillance (II 34, 61, 63). Moses claimed, however, on redirect examination, that he had obtained the drugs he gave the police in this case from Mr. xxxxx, and had not kept them hidden in his room or car (IVA 65).

It was Moses who originally told the police that Mr. xxxxx was selling drugs and prompted them to set up the operation against him (I 51). Moses claimed that he had known Mr. xxxxx for more than four years, since the time when Mr. xxxxx had run nightclubs on 14th Street (IIA 23). In late December of 1991 or January of 1992, Moses said, Mr. xxxxx approached him and told him that he had been watching him, that he seemed to keep a "pretty low profile," and that he (Mr. xxxxx) could get Moses "anything" he needed, including cocaine (IIA 23-24).

The first alleged transaction took place on February 13, 1992 inside the Fulton Hotel, at the corner of Sixth and I Streets, N.W., which Mr. xxxxx's brother Eddie undisputedly owned (I 84). Initially, Mr. xxxxx told Moses, "The dude's coming around 8:30," and said, "you got, you got," to which Moses responded that he would go "to the MOST machine and get a few more dollars" (Exh. 60 at 4; A. 38). (7) Mr. xxxxx then said, "I got a rock," and when Moses asked whether the weight was "right," Mr. xxxxx said, "I'm gonna weigh it," and went on to say, "If he says it's twenty-six, it's twenty-six" (Exh. 60 at 4; A. 38). Although there are 28 grams in an ounce, Hickey and Moses both testified that 26 referred to an ounce, and Moses said "rock" meant "crack" (I 59; IIA 39). Hickey and Moses both said they could hear money being counted out on the tape, and Moses said he paid Mr. xxxxx $1300, although apparently no mention of an amount was recorded (I 70; IIA 31, 43). Mr. xxxxx later said, "About ten minutes . . . . He just call me, he just beeped me" (Exh 60 at 17; A. 51).

Mr. xxxxx allegedly left the hotel, walking south on Sixth Street, and then came back up Sixth to the hotel about 20 minutes later (I. 70-71). Apparently upon Mr. xxxxx's return, Moses asked, "You just got this?" and "Is this shit good, Man?" (Exh. 60 at 22; A. 56). Moses testified that he was referring to the crack Mr. xxxxx gave him, which he then called "top notch shit" (IIA 45; Exh. 60 at 22; A. 57). Moses proceeded to tell Mr. xxxxx he would be able to "do" "2 . . . 3 thousand a week with you," and Mr. xxxxx purportedly seemed "surprised" but said, "I know the right people (I 72; IIA 45-46; Exh. 60 at 23; A. 57).

The second alleged transaction took place on February 19, 1992. Moses said he met Mr. xxxxx the day before at the Fulton Hotel to discuss price and quantity (IIA 49). On the 19th, Moses allegedly talked to Mr. xxxxx on the hotel telephone and let him know he was ready to do business (IIA 49). Mr. xxxxx later went to the hotel and had a conversation with Moses that included a statement by Mr. xxxxx, allegedly referring to price, that his supplier had told him the "first one was thirteen," but "[t]his one is twelve" (I 78; IIA 50; Exh. 61 at 3; A. 66). Moses allegedly gave Mr. xxxxx the $1200, and Mr. xxxxx then left and subsequently called Moses at the hotel and told him to meet Mr. xxxxx at Seventh street and Constitution Avenue, which he did (I 80-81; IIA 50-51). As Moses sat in his car, Mr. xxxxx drove up in his, got out, walked to Moses' car, and allegedly dropped the drugs in Moses' lap (IIA 51). Their conversation included a "Thank you" and a complaint about low weight ("twenty-three") "last time" by Moses and comments by Mr. xxxxx that allegedly indicated his concern about possible police surveillance (I 82; IIA 51; Exh. 61 at 9-11; A. 72-74).

The third alleged transaction occurred on March 2, 1992, again having been arranged by Moses and Mr. xxxxx the day before (III 19).

This time, there was no meeting at the hotel. Mr. xxxxx allegedly called Moses there and told him to meet Mr. xxxxx at the "same place," Seventh and Constitution, which he did (I. 88-89, III 20). Moses allegedly gave Mr. xxxxx $1200 there, and Mr. xxxxx allegedly said he'd "meet his guy" and left, returning about an hour and 25 minutes later, at which time Moses went to Mr. xxxxx's car, leaned into it, and allegedly received the drugs from Mr. xxxxx (I 91-92; III 21-22). Moses asked Mr. xxxxx if he could procure heroin, and Mr. xxxxx emphatically explained he would not, because it could mean "You do life" (I 92-93; III 30; Exh. 62 at 5-6; A. 79-80).

The fourth alleged transaction, as discussed above, took place on March 23, 1992, after an alleged unconsummated deal on March 18 that Moses claimed failed because he would not put $1200 into the mailbox at xxx H Street (I 98-99; III 34-35). On the 23rd, Mr. xxxxx allegedly went to the hotel and picked up $600 from Moses, then left and told him by telephone to go to xxx H Street, which was about a block away (I 100; III 36). Moses went there, Mr. xxxxx let him in the front door, and inside they "made a quick right into what I [Moses] believed to be an apartment there" (I 101; III 36). Mr. xxxxx seemed cautious in the "apartment," where the alleged distribution of one-half ounce of crack took place (III 37, 42).

The fifth alleged transaction took place on April 1, 1992. Again Mr. xxxxx went to the Fulton Hotel, where he allegedly took $1200 from Moses and left, saying he would call (III 47). He did call, telling Moses to go to Seventh and I Streets, but then he appeared at the hotel and allegedly gave Moses the drugs in his room (I 108-109, 111; III 49).

The "final meet" was on April 8, 1992, again allegedly having been arranged the day before (III 58-59). Moses first bought an ounce from another police target who was to be arrested that evening, allegedly turning the drugs over to Hickey (III 60-61). Then, after some difficulty, the hotel clerk was allegedly able to contact Mr. xxxxx, and he called Moses, who allegedly told him he had the money and was told by Mr. xxxxx to go to xxx H Street (III 62-63). Moses went there, Mr. xxxxx admitted him, and again they went into the "apartment" or "room" to the right inside the front door (I 115; III 63, 70). Mr. xxxxx did not have the drugs (III 64). Moses said, "You said you gonna see this dude in a day or two," Mr. xxxxx answered, "Yeah, tomorrow," and Moses said, "Well here. You see I brought all this shit down so I'm gonna leave it with you. Is it alright?" (Exh. 65 at 2; A. 102). Allegedly, the sound of the money being counted out was then taped (III 69; Exh. 65 at 2; A. 102). Mr. xxxxx then said, allegedly referring to his supplier, "[S]ee what happens, he's in jail now" (I 116; Exh. 65 at 2; A. 102). Hickey claimed that Moses told Mr. xxxxx he would be back the next day (I 116). Moses then left, and shortly thereafter, on the street, Mr. xxxxx was arrested (I 117-118). The serial numbers on the $1200 found in the subsequent search of xxx H Street matched the numbers prerecorded by the police on the bills given to Moses (I 118).

The defense stipulated to the chain of custody and to the following analysis results pertaining to the five portions of cocaine base in evidence: Exhibit 9 (February 13), 20.93 grams, 95 % pure; Exhibit 10 (February 19), 24.12 grams, 95 % pure; Exhibit 11 (March 2), 19.32 grams, 81 % pure; Exhibit 12 (March 23), 12.14 grams, 92 % pure; and Exhibit 13 (April 1), 19.07 grams, 87 % pure (V 102-104).

The Defense's Case

Moses acknowledged that he put several combination locks on the door to his room at the Fulton Hotel (IVA 8). The defense presented testimony that he was selling drugs from his room during the period he was cooperating with the police and that drugs and paraphernalia, which were introduced in evidence, were found in that room after he left, when his combination lock was cut off and the room was searched.

Deborah Whitely, a crack user and resident of the Fulton Hotel, testified that she had known Moses for about a year and that she saw him cutting, bagging, and selling drugs in his room at the hotel between April and February of 1992 (VI 9-12, 16-18). Maria (known to Moses as "Mimi") Brock, a recently reformed crack user, testified that she first met Moses in his room in late February of 1992, when she went there with a friend to buy cocaine from him (VI 19, 23, 25, 45). She saw him cooking powder cocaine, baking soda, and spring water in a test tube (VI 20). Another time, she saw him when he brought her friend a package of cocaine in the shelter at Second and D Streets and picked up money from other people (VI 20). She dated Moses during March and April, 1992 (VI 20). He carried money in separate rolls of "fifties" and "hundreds" (VI 22).

Eddie xxxxx, the defendant's brother and the owner of the Fulton Hotel, testified that Moses had lived at the hotel most recently from January, 1992 until April 9 or 10, 1992, and had put his own combination lock, which the hotel staff could not open, on the door of his room, which was number 2 (V 135, 138-141). (The defendant assisted the witness in running the hotel (V 146).) Moses only paid his rent through April 9, 1992, but, contrary to his usual practice of opening and cleaning out vacated rooms, the witness left the lock on the door until August 28, 1992, when he cut the lock and opened the room in the company of defense counsel Harry Tun, his investigator, and a police officer (V 141-142, 150). Eddie xxxxx had waited so long to open the room at the request of Mr. Tun, but Moses had never actually checked out and other rooms were available to rent during that period (V 153-155). He had seen Moses there on April 9 or 10, and "confronted" (the prosecutor's word) him, because he had heard on the street that Moses was involved in "setting up" the defendant (V. 166). After the door was opened, Eddie xxxxx and Mr. Tun "peeked in," but only the investigator and the police officer went in (V 155-156).

Joseph L. Brenner, a recently retired, 25-year veteran of the Metropolitan Police Force, was qualified as an expert on police investigation of narcotics offenses (V 179-183). He testified that the proper police procedure where a special employee was buying drugs would include searching any pre-arranged purchase location and vehicle to be used before the transaction to be sure the person had no other money or drugs that would compromise the investigation (V 185). In a hotel room to be used, video or recording devices could be placed (V 186). "[Y]ou have to have control over everything," he said (V 186).

Brenner was shown a number of defense exhibits allegedly found in Moses' room, including a large ziplock bag containing nine half-inch square ziplocks with white powder residue, a yellow half-inch square ziplock, a blue ziplock and a quantity of red ones the same size, a razor blade, two bottles of spring water, 20 boxes of baking soda, a 35 mm. film canister containing white residue, and a surgical glove (V 191-192). He testified that these items would typically be used to make and package crack (V 192). He was also shown heatsealed envelopes and DEA-7 forms indicating that they contained ten bags of powder cocaine weighing 4.63 grams, 83 % pure, and one bag of crack weighing .196 gram, 83 % pure (V 193-194). The Government stipulated to the results of the DEA analysis and to the chain of custody of the drug exhibits (VI 95-97).

Bonnie Duffy Page, Mr. Tun's investigator, testified that on August 28, 1992, she entered and searched room 2 at the Fulton Hotel immediately after the lock was cut off (VI 52-53). Officer Vernon Dallas, whom she had encountered on the street and flirted with, was at first standing in the doorway (VI 52-53). She first saw plastic bags, spring water, and baking soda in plain view, and eventually she found all the items that were shown to Brenner (VI 53-63). She called the police and an officer Martinez came and took custody of the apparent drugs (VI 56-57). Officer Dallas, who had been off-duty during the search, generally corroborated Ms. Page's account of it (VI 98-134).

The Government's Rebuttal Evidence

Before the Government started its rebuttal case, the judge overruled the defenses's objection that the Government could not properly introduce new drug possession evidence against Mr. xxxxx on rebuttal (VI 135-136). The prosecutor asserted that the ziplock bags containing crack that the police seized from the third floor of xxx H Street, N.W., "resembled" the ziplocks found in room number 2 at the Fulton Hotel, thus showing that "someone other than Mr. Moses had access to that sort of packaging, and it directly rebuts the defense presumption or attempts to create a presumption that this evidence is Mr. Moses'" (VI 135-136). The judge acknowledged that the defense had not "opened up" this subject by asking questions about the search of xxx H Street, but he told defense counsel, cryptically, "You just opened it up" (VI 136).

Moses returned to the witness stand and acknowledged that although he had removed personal property such as a VCR and a telephone from room 2 at the Fulton Hotel in the days before the planned arrest of Mr. xxxxx, he had left on the door a combination lock, which looked like the defense exhibit, as a "security measure" (VI 142-144). He also acknowledged that Eddie xxxxx had asked him if he knew about "what was going on" after Mr. xxxxx's arrest, and that he had responded negatively (VI 143). Of the items found the room by Ms. Page, he admitted ownership only of a coupon book from his car dealer, but he acknowledged that he kept spring water in his room (VI 145-146). He acknowledged that he knew Mimi Brock, whom he had seen at the Fulton Hotel, but he denied that she had visited him (VI 150). He denied, too, that he was selling drugs while cooperating with the police (VI 148).

Moses identified a leather jacket, Government's Exhibit 36, as looking like one he saw Mr. xxxxx wear (VI 145-146). Officer Tracy Poindexter testified that on April 8, 1992 she found three ziplocks of crack in the pocket of that jacket, which was hanging in the hall closet on the third floor at xxx H Street, and she left them there for the seizing officer, Rex Plant (VI 156-157). Over objection, she also testified that she found empty ziplocks in the basement (VI 157-158). She identified Government's Exhibit 34 as the ziplocks from the basement and, apparently, Exhibit 33 as the ziplocks from the coat in the closet, which she said Plant gave back to her at the station (VI 158-159). She acknowledged that "a lot of clothes" were in the closet on the third floor, and that there were two bedrooms there (VI 160-161). (8)

Officer Mark J. Carter testified that in a third floor bedroom, he searched the garments on a rack on the wall and found a brown bag containing a large ziplock bag with small ziplocks in it (VI 153). He, too, identified Government's Exhibit 33 as the evidence he found (VI 154). He also claimed he found, in a coat pocket, an "identification" of Mr. xxxxx, which he placed on a table and showed to Officer Plant but apparently it was not seized (VI 153-155).

Plant testified that the ziplocks and a razor blade from the leather jacket were in Exhibit 31, and that the paraphernalia he received from Carter was in Exhibit 34 (VI 163-164, 166). The defense stipulated to the DEA analysis' conclusion that Exhibit 31 contained 1.49 grams of 72 % pure cocaine base, and to the chain of custody for that exhibit (VI 171-172).

The Government did not present any testimony comparing the characteristics of the ziplocks found in Moses hotel room and in xxx H Street.

Following the closing arguments, the judge agreed to the prosecutor's proposal to issue a particular limiting instruction concerning the rebuttal evidence (VII 13-15). (9) Defense counsel apparently collaborated with the prosecutor to some extent on the language to be used, while preserving Mr. xxxxx's claim that the prejudice stemming from the rebuttal evidence could not be cured (VII 7, 13-15). The charge agreed upon read as follows:

The defendant adduced evidence that on August 28th, an investigator employed by defendant entered the room which Mr. Moses occupied up to April 10 and found three packages of drugs and drug paraphernalia.

The Government introduced a number of exhibits into evidence during its rebuttal case. The evidence is solely to be considered in assessing the evidence presented by the defendant during his case. It is not to be considered for any other purpose.



(VII 14). The judge agreed to issue this charge (VII 15). However, in his actual instructions to the jury, the judge merely referred to the presentation of defense witnesses and Government rebuttal witnesses and read the second paragraph, omitting the first paragraph's specific reference to the evidence found in Mr. Moses' room (VIIA 59). When the prosecutor called this to the judge's attention, he offered to correct the instruction, but defense counsel said he would "rather not emphasize it," and no further instruction was given (VIIA 61).





SUMMARY OF ARGUMENT


ARGUMENT

POINT I

THE SEARCH WARRANT FOR THE ENTIRE BUILDING WAS OVERBROAD AND ITS EXECUTION UNREASONABLE BECAUSE THE SUPPORTING AFFIDAVIT ONLY PROVIDED PROBABLE CAUSE TO SEARCH THE PART OF THE BUILDING WHERE A DRUG PURCHASE HAD ALLEGEDLY BEEN MADE, IT DID NOT DESCRIBE THAT PLACE WITH THE PARTICU-LARITY EXPLICITLY REQUIRED BY THE FOURTH AMENDMENT, AND THE BUILDING IN FACT CONTAINED AN OFFICE AND THREE SEPARATE RESIDENTIAL UNITS.

The Standard of Review

In an appeal from the denial of a motion to suppress evidence as seized in violation of the Fourth Amendment, the Court reviews fact findings for clear error, and legal conclusions de novo. United States v. Taylor, 997 F.2d 1551 (D.C. Cir. 1993). The District Court's legal conclusions are challenged herein.

The Overbreadth of the Search Warrant

The Supreme Court has recognized that if police officers seeking a search warrant know, or "should" know, that the building to be entered contains more than one "dwelling unit," they must confine their warrant request to the particular unit or area they actually have probable cause to search. Maryland v. Garrison, 480 U.S. 79, 85 (1987). As the Court wrote,

The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one "particularly describing the place to be searched and the persons or things to be seized." The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.[footnote omitted]Id. at 84.

In Garrison, the Court endorsed the findings of the lower courts that the police "reasonably concluded," based on information obtained from a reliable informant, an exterior examination of the building, and an inquiry of the utility company, that the third floor contained only one apartment, and thus that the warrant to search the entire third floor was valid when it was issued. Id. at 81, 86. In the instant case, in contrast, the conclusion of the supporting affidavit and the magistrate judge that xxx H Street was, in effect, one undivided premises that should be generally searched, was blatantly unreasonable. The warrant to search the entire four floors of the building was therefore invalid, and all the evidence seized therein should have been suppressed.

As defense counsel pointed out below, the supporting affidavit utterly failed to specify where in the building the single alleged transaction there, on March 23, 1992, had taken place. Again, the affidavit said that Mr. xxxxx called Jesse Moses (the "Se") at the Fulton Hotel and told him to go to xxx H Street, N.W., and

Once there Se was met by xxxxx at the first floor entry door and taken inside. Se handed xxxxx $600.00 dollars (sic) in pre recoreded (sic) MPDC funds and xxxxx returns a plastic bag contained a white rock like substance. xxxxx told Se that the house was his office and not his home.

(A. 18) This sketchy and ambiguous account clearly did not support the inference that all four floors of the ostensibly residential building were Mr. xxxxx's "office" and likely contained evidence of criminal activity by him.

Sergeant Hickey failed to strengthen the Government's position at the suppression hearing when he elaborated on the information the police considered in preparing the supporting affidavit. He testified that he heard Mr. xxxxx say to Moses on tape that the place they were in "used to be an apartment building, but that he had remodeled it and that it was now being used as an office by himself and his brother"; however, he also heard Mr. xxxxx tell Moses that Mr. xxxxx's mother would stay in the building when she came to Chinatown to visit (H. 12). Furthermore, Hickey admitted that there could have been doorbells he did not notice at the front door, and that he did not know which floor Mr. xxxxx's mother occupied (H. 17-18).

The record establishes, therefore, that before the execution of the warrant, the police actually had information militating against a search of the entire four-story building at xxx H Street. They had heard that it contained Mr. xxxxx's office, but also that he claimed he did not live there and that he claimed his mother resided in it when she came to town. They had absolutely no reason to believe that the "office" occupied more than one floor. They had no reason to believe that the March 23 transaction had taken place on an upper floor. They had no reason to believe that Mr. xxxxx was lying to Moses when he disclaimed living in the building. And they were on notice that at least one person, not apparently suspected of drug trafficking, did have a residence somewhere in the premises.

The police had no excuse for seeking a warrant while remaining ignorant of where in the building the alleged March 23 transaction took place. Moses presumably would have told them if they had taken the slight trouble to ask him, and they could have specified that place in the supporting affidavit, as the Fourth Amendment requires. (10) If they did not want to confine their prospective search to that place, their reasonable course would have been to investigate the building further before seeking the warrant, as did the police in Garrison. Had the police here conducted even a minimal investigation, they would have discovered the three doorbells that the judge assumed were near the front door, which suggested the existence of apartments, and they could also have learned, as the judge assumed Eddie xxxxx would have testified, that the building was "listed" as a multiple dwelling. Also, mere observation of the building for a day probably would have revealed that Mr. Ng lived there. This aggregated information, if reported to the magistrate judge, obviously would have precluded the granting of a warrant for a general, exploratory search of all four floors of xxx H Street.

In United States v. Dorsey, 591 F.2d 922, 929 (D.C. Cir. 1978), this Court wrote,

Federal courts have long held that police officers, before they constitutionally may search a separate residential unit within an apartment building, must have probable cause to do so that is specifically related to that unit. E.g., United States v. Hinton, 219 F.2d 324, 325-326 (7th Cir. 1955). "A single warrant cannot describe an entire building when cause is shown for entering only one apartment." Moore v. United States, [461 F.2d 1236, 1238 (D.C. Cir. 1972).]



The warrant in Dorsey was not found overbroad, because the building searched "showed no outward signs of multiple residency"--the Court's examples included doorbells--and because the police determined before seeking the search warrant that the building was not registered as a rooming house with the Department of Licensing. 591 F.2d at 930. Moreover, the only extra kitchen in the building in Dorsey was in the basement, apparently there was evidence that the building lacked multiple utility or telephone accounts, and the police had previously searched the whole house, found no locked rooms, and received the impression that "any occupant of the house had 'the run' of the whole structure." Id. at 931.

Here, of course, the facts were very different, and under the rule recognized in Dorsey, the warrant must be found to have been overbroad. The building here had three doorbells outside, and it contained three kitchens, one on each floor but the basement (H. 31). Mr. xxxxx had stated that he did not live there but that his mother did. The police apparently did not ask their own informant to describe where he had been and what he had seen in the building. They did not check with District licensing officials or with the utility and telephone companies to determine whether the building had multiple dwellings. And they did not even take the obvious, easy measure of sending someone to see if xxx H Street had multiple doorbells and if anyone other than Mr. xxxxx went in and out. The conclusion is inevitable that the police simply wanted to search the entire building and did not want to find out anything that might have made it improper for them to conduct such a broad search.

In the Hinton case, cited with approval by this Court in Dorsey and Moore and relied upon by defense counsel below, the Seventh Circuit held that "the affidavit does not establish probable cause to search the entire building without the allegation of facts to show that each of the apartments in the building was the residence of at least one of the persons alleged in the affidavit to have been seen selling narcotics." 219 F.2d at 326. That holding applies fully to this case. Moreover, given the judge's conclusion in this case that suppression was not required because Mr. Ng's residence was not fully searched, the following analysis in Hinton applies here:

If the officers had found that the defendants were the only ones living in the apartment building and that no innocent persons had actually suffered an unjustified search, the warrant would still be invalid. The validity of the warrant is dependent on the facts shown in the affidavit before the issuing authority. The affidavit in this case did not justify the ensuing warrant, and the fact that no harm was done . . . would not validate a warrant invalid because of its failure to "particularly" describe the place to be searched.



219 F.2d at 326.



The Seventh Circuit followed Hinton in United States v. Higgins, 428 F.2d 232, 234-235 (7th Cir. 1970), where the warrant failed to particularize which of three basement apartments was to be searched. Similarly, in United States v. Votteller, 544 F.2d 1355, 1363-1364 (6th Cir. 1976), where the building in question had a bar on the first floor and apartments on the upper two but these facts were not reflected in the description of the place to be searched, the Sixth Circuit held that the authorization to search the entire premises rendered the warrant invalid, quoting extensively from Hinton. To the Government's claim on appeal that no more information about the premises was available, the Votteller court responded,

We find no evidence that the Government agents made any effort to get a more detailed description of the premises to be searched. Government agents cannot be heard to say that they did not know or that they made an honest mistake in the description.544 F.2d at 1363. For the same reason, this Court should follow Hinton here, where there was no justification for the total absence, in the supporting affidavit and the warrant, of the particularity the Fourth Amendment requires in order to keep the scope of a search in a multiple dwelling from exceeding the scope of the pre-existing probable cause.

The Unreasonableness of the Execution of the Warrant

In Garrison, having found the warrant valid when issued, the Supreme Court recognized that if the police had discovered during the search that the warrant was in fact overbroad because the building contained living quarters as to which probable cause had not previously been established, they would have been precluded from searching those quarters. 480 U.S. at 87. In this case, contrary to the suggestion of the judge below, it was not enough that the police broke off their search of the second floor when they discovered that Mr. Ng lived there. The existence of a kitchen, bath, and locked room on the second floor contradicted the fundamental assumption of the supporting affidavit that the entire building was merely Mr. xxxxx's office, and because the third floor also included a kitchen, the officers, in Garrison's words, "were put on notice that they might be in a unit erroneously included within the terms of the warrant" on the third floor, too. 480 U.S. at 87. The continued search there was not an "honest mistake," saved by the fact that Mr. Ng told the police, through an unofficial interpreter, that Mr. xxxxx lived there. This completely new information had not been assessed by the magistrate judge, and it could not retroactively create probable cause to search Mr. xxxxx's residence under the unparticularized warrant to search what was supposed to be his "office."

It follows that even if the police reasonably entered and searched the first floor, they were not reasonable in searching the third floor, and the evidence seized there, which the Government introduced as rebuttal evidence, should have been suppressed.

POINT II

THE EXECUTION OF THE SEARCH WARRANT VIOLATED 18 U.S.C. 3109 BECAUSE THE OFFICERS FORCIBLY ENTERED THE BUILDING IN CHINATOWN AFTER ANNOUNCING THEIR AUTHORITY AND PURPOSE ONLY IN ENGLISH, AND THE RESIDENT THEY FOUND INSIDE ONLY SPOKE CHINESE.



The Standard of Review



The application of the reasonableness standard to the entry of a building pursuant to 18 U.S.C. 3109 to execute a search warrant is reviewed De novo; only findings of historical fact are reviewed for clear error. United States v. Ramos, 923 F.2d 1346, 1355-1366 (9th Cir. 1991). Accord, Griffin v. United States, 618 A.2d 114, 117-118 (D.C. App. 1992). Properly considered, the police conduct here must be seen to have violated the statute and the Fourth Amendment.

The Inadequacy of Notice in English in a Community Where Knowledge of English Cannot Reasonably Be Presumed



In executing a search warrant, an officer "may break open any outer or inner door or window of a house . . . if, after notice of his authority and purpose, he is refused admittance. . . ." 18 U.S.C. 3109. In Miller v. United States, 357 U.S. 301, 311 (1958), the Supreme Court held that the notice requirement of 3109 is not satisfied by responding to an occupant's request for identification by saying "police" in a low voice that might not have been heard. "A knock and announcement must be loud enough to be heard . . . ." United States v. Leichtnam, 948 F.2d 370, 374 (7th Cir. 1991). "The Fourth Amendment required the officers to make a reasonable effort to provide actual, and not merely pro forma, notice of their identity and imminent entry." Rivera v. United States, 928 F.2d 592, 606 (2d Cir. 1991).

As discussed above, before obtaining and executing the search warrant for xxx H Street, the police had ample grounds to believe (and a reasonable investigation would have given them more) that it was a multiple dwelling, where at least one person suspected of no wrongdoing--Mr. xxxxx's mother--might well be in residence. They also knew, of course, that the building was in the heart of the District's Chinatown, officially recognized by that name, where many immigrants unfamiliar with English are to be found. Mr. xxxxx had just been arrested, and it does not appear that he was suspected of having a partner, so the police did not have any apparent basis for fearing that someone inside the premises would destroy evidence if they did not enter speedily. Nevertheless, they proceeded with haste.

Shortly after the officers let themselves into the building, they encountered Mr. Ng's locked door on the second floor. Although Mr. xxxxx was the only suspect in the investigation and someone else was obviously inside (he pushed a police armband back out under the door), the police chose to break Mr. Ng's door open when he did not comply with their order to open it himself. Finally, when they saw him, it dawned on them that they had come upon a person in Chinatown who did not speak English. At this point, they were evidently able to find someone from a neighboring building to come and interpret. This resourcefulness developed far too late.

It was simply unreasonable, in the circumstances of this case, for the police to barge in to search the entire four-story building in Chinatown without announcing their authority and purpose in Chinese, as well as in English. Their tactics, like their application for the search warrant, were clearly designed to achieve a general, exploratory search, regardless of the limited scope of their probable cause. The Fourth Amendment was clearly violated.

The judge seems to have given the motion to suppress on this ground short shrift because Mr. xxxxx was not present at the time of the entry (H. 64). The Government did not argue that Mr. xxxxx lacked standing, and no reason suggests itself for permitting him to challenge the validity of the search warrant and not its execution. Accordingly, the judge erred in failing to find that 3109's notice requirement was violated and to suppress the evidence seized for that reason, if not for the reasons argued above.

POINT III

THE GOVERNMENT FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE PRERECORDED POLICE MONEY WOULD INEVITABLY HAVE BEEN DISCOVERED ABSENT MR. xxxxx'S STATEMENT, CONCEDEDLY OBTAINED IN VIOLATION OF HIS MIRANDA RIGHTS, AS TO WHERE IT WAS HIDDEN.

The Standard of Review

It appears that this Court reviews inevitable discovery issues de novo, reconsidering all the factors militating for and against the Government's claim. See United States v. Gale, 952 F.2d 1412 (D.C. Cir. 1992), and United States v. $638,558.00 in U.S. Currency, 955 F.d 712 (D.C. Cir. 1992), discussed below.

The Weakness of the Proof of Inevitable Discovery

In Nix v. Williams, 467 U.S. 431 (1984), the Supreme Court adopted the "inevitable discovery" exception to the exclusionary rule, applying it where investigators violated the defendant's right to counsel in eliciting from him the location of a victim's body, but the state claimed the body would have been found in any event. The Court wrote, f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means--here the volunteers' search--then the deterrence rationale [for the exclusionary rule] has so little basis that the evidence should be received.Id. at 444. In the footnote following this sentence, the Court commented that . . . inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment and does not require a departure from the usual burden of proof at suppression hearings.Id. n.5. Apparently, the last clause was in response to the call of the dissenters, as well as the defendant, for a "clear and convincing" standard of proof. Id. at 459-460.

This Court has applied the teachings of Nix in two recent cases, affirming denial of the defendant's suppression motion in one, United States v. Gale, 952 F.2d 1412 (D.C. Cir. 1992), and affirming the suppression of the evidence in the other, United States v. $638,558.00 in U.S. Currency, 955 F.d 712 (D.C. Cir. 1992). In Gale, much as here, the Government conceded that the police had violated the defendant's Miranda rights in learning from him where in his car drugs were located, but in Gale, discovery of the drugs in the inventory search that would have followed the defendant's legal arrest was found inevitable. 952 F.2d at 1416-1417. The Gale Court took notice of the specific Metropolitan Police Department inventory search procedures that would have led to the finding of the drugs. Id. at 1416 n.7. In the Currency case, where the defendant train passenger was legally arrested at Union Station, the judge found, and this Court agreed, that the evidence about police procedures established that it was not inevitable that the defendant's suitcase would have been inventoried. 955 F.2d at 721.

Here, the record is unambiguous that during the search of xxx H Street, Sergeant Dade was told on the scene that Mr. xxxxx had revealed at the stationhouse precisely where he had hidden the money Moses had given him that evening--under a box on a shelf--and Dade went directly to the shelf, lifted up the box, and found the money (H. 28). This discovery was indisputably the direct consequence of the conceded Miranda violation. The only proof the Government offered of the purported inevitability of the discovery was Dade's testimony that Investigator Plant was then searching the set of shelves where the money was found, working his way down from the top, and he was still "probably" two shelves away from searching the shelf that held the box that hid the money (H. 28).

This speculative testimony was insufficient to constitute a preponderance of the evidence that the money would inevitably have been discovered during the execution of the search warrant. There was no proof of what Dade's, or even the Department's, searching practices were. The police had virtually the whole house to search. Under the box, rather than inside it, would seem to have been an effective hiding place, where searchers with much work ahead of them might not guess that $1200 would be secreted.

The Currency opinion observed that . . . since the police officers in Gale were not in a position to calculate, at the time they conducted the illegal interrogation, that the drugs were in a location to be inventoried later, no deterrent purpose would have been served by excluding the drugs themselves . . .955 F.2d at 720. In the instant case, in contrast, whoever violated Mr. xxxxx's Miranda rights at the station must be deemed to have known that he was arrested almost immediately after leaving xxx H Street, that a brief while earlier Moses had allegedly given him the money inside that building, and that the police were about to execute the search warrant there, if they had not already begun doing so. If the money was not found on Mr. xxxxx's person, it was likely to be somewhere in the house, though it would not necessarily be found. Obviously, the police had an incentive to violate Mr. xxxxx's Miranda rights in order to make the search easier and one result of it certain, and they did so. Suppression of the money here thus would serve the exclusionary rule's deterrent purpose.

In United States v. George, 971 F.2d 1113, 1121-1122 (4th Cir. 1992), the Fourth Circuit vacated part of a suppression order and remanded for findings as to whether hacksaw blades that were found in a toolbox in the defendant's truck would inevitably have been discovered pursuant to standard police inventory procedures; there had been no opportunity at the suppression hearing thus to establish inevitable discovery. In this case, however, the Government actually raised the issue initially and claimed it did prove inevitable discovery at the hearing. It could have presented Plant to testify about his search practices, or otherwise tried to prove, by a preponderance of the evidence, that lawful police procedures would inevitably have turned the money up. Instead, it elected to present only the speculative testimony of Dade that Plant "probably" would have searched the right shelf soon. That was not enough to carry the burden established by Nix, and the Government cannot reasonably claim it deserves another chance. The money should be suppressed as the "fruit" of the violation of Mr. xxxxx's Miranda rights.

POINT IV

THE JUDGE ERRED AT TRIAL IN PERMITTING THE GOVERNMENT TO INTRODUCE, IN ITS REBUTTAL CASE, EVIDENCE THAT COCAINE BASE AND DRUG PARAPHERNALIA NOT ENCOMPASSED BY THE CHARGED OFFENSES WERE FOUND IN MR. xxxxx'S THIRD-FLOOR LIVING QUARTERS.



The Standard of Review



The admission of rebuttal evidence is reviewed for abuse of discretion. See United States v. Casamento, 887 F.2d 1141, 1171 (2d Cir. 1989).



The Improper Rebuttal Evidence

In Agnello v. United States, 269 U.S. 20, 29, 35 (1925), the Supreme Court rejected the Government's contention that where the defendant in his direct testimony did not claim that he had never seen narcotics but the prosecutor elicited that claim from him on cross-examination, it was improper for the Government to introduce "rebuttal" evidence that drugs were found in his home. This Court also has long recognized the limits of the "open door," or "curative admissibility," rationale for permitting cross-examination or rebuttal evidence. In United States v. Winston, 447 F.2d 1236, 1240, the Court wrote,

Permission to explore in rebuttal with testimony not admissible on direct, on the ground that the other party has opened the doors, rests "upon the necessity of removing prejudice in the interest of fairness." Crawford v. United States, 91 U.S.App.D.C. 234, 237, 198 F.2d 976, 979 (1952).The purported rebuttal evidence in Winston was held improperly admitted because it did not rebut anything to which the defendant testified. Similarly, in United States v. Childs, 598 F.2d 169, 174 (D.C. Cir. 1979), the Court said,

Rebuttal evidence is admissible only to the extent necessary to combat evidence in chief [citing Winston], and defense counsel had questioned Officer Lilly only about the making of a loan. The open-door theory provides no basis for legitimatizing the completely unrelated rebuttal statement that appellant had endeavored to arrange another sale presumably of contraband.In the instant case, the Government clearly was justified in presenting Moses on rebuttal to deny the defense allegations that he had possessed and sold drugs in room 2 of the Fulton Hotel during the period in question. However, contrary to the Government's contention, the proof that drugs and paraphernalia had also been found in Mr. xxxxx's alleged living quarters did not rebut those defense allegations about Moses. No defense witness testified that Mr. xxxxx never possessed or sold drugs. And no defense witness testified that the drugs or ziplocks found in Mr. Moses' room were in any way peculiar to him. In fact, the defense narcotics investigation expert, Joseph Brenner, simply testified that those ziplocks were the type used to package drugs in the District (V 192). Thus, it was irrelevant, if it was true, that Mr. xxxxx possessed ziplocks containing a small amount of crack, as well as a number of other, empty ziplocks.

The Government did not present any expert testimony that the ziplocks found in Mr. xxxxx's building were not typical or that they were even similar in any significant way to the ziplocks found in Mr. Moses' room. The prosecutor himself may have believed some of the ziplocks taken from Mr. xxxxx's third floor "resembled" the ziplocks the defense attributed to Mr. Moses (VI 135-136), but that subjective opinion fell far short of establishing a necessity for introducing on rebuttal the drugs and all the paraphernalia seized at xxx H Street. It was an abuse of the judge's discretion, therefore, to admit that evidence.

In Childs, supra, the Court did not reverse the conviction because it found that the improperly admitted rebuttal evidence was merely cumulative, adding no more to the impact of the Government's overwhelming case than "a pebble at the foot of Mount Rushmore." 598 F.2d at 175. Here, the evidence was not at all cumulative, for Moses was the only witness in the Government's case in chief who claimed to have seen Mr. xxxxx possess and distribute drugs. Moreover, quite apart from the defense evidence, Moses' credibility as a former drug dealer was vulnerable. Accordingly, it cannot reasonably be held that the admission of the improper rebuttal evidence, which unfairly bolstered the Government's case, was harmless.

CONCLUSION

For the reasons set forth above, Mr. xxxxx's convictions should be reversed, the evidence seized suppressed, and a new trial ordered.

Respectfully submitted,



A. J. KRAMER

FEDERAL PUBLIC DEFENDER









________________________________

Allen E. Burns

Assistant Federal Public Defender

625 Indiana Avenue, N.W. Suite 550

Washington, D.C. 20004

(202) 208-7500





CERTIFICATE AS TO LENGTH OF BRIEF



I HEREBY CERTIFY that the foregoing brief contains no more than the number of words allowed by Circuit Rule 28(d).







_________________________________

Allen E. Burns







CERTIFICATE OF SERVICE



I HEREBY CERTIFY that on August 22, 1994, two copies of the foregoing brief for defendant-appellant and one copy of the accompanying appendix were served by United States Mail, first-class postage paid, upon the United States Attorney's Office, Att'n: A.U.S.A. John R. Fisher, 555 Fourth Street, N.W., Room 10-435, Washington, D.C. 20001.







________________________________

Allen E. Burns

1. Numbers preceded by "H" refer to pages in the transcript of the motion hearing on September 21, 1992.

2. The motion and the Government's opposition are included in appellant's appendix, page citations to which are prefixed by "A."

3. In fact, according to the transcript used in conjunction with the playing of the tapes at trial, Mr. xxxxx merely told the CI that it "was an apartment building" and he had remodeled the area they were in for himself and would not rent it out (A. ). He did not say that the building no longer contained separate residences.

4. There was no testimony at the hearing as to the time on April 8, 1992 that the police entered xxx H Street. The return on the warrant filed in the District Court contains a notation of entry time that appears to be "2130" (A. 22), and defense counsel did not argue that the entry was untimely. However, at trial one officer did testify that the entry was at about 10:30 p.m. (VI 160).

5. At trial, on rebuttal, the Government introduced drugs, plastic bags, and a razor blade that allegedly had been found secreted on the third floor (VI 63-66).

6. The following Roman numeral prefixes designate citations to pages in the 12 volumes of the trial transcript:

"I" - September 22, 1992

"IA" - September 22, 1992, opening statements

"II" - September 23, 1992, morning

"IIA" - September 23, 1992, afternoon

"III" - September 24, 1992, testimony of Jesse Moses

"IIIA" - September 24, 1992, excerpt, partially sealed

"IV" - September 25, 1992, excerpt

"IVA" - September 25, 1992, cross-examination of Moses

"V" - September 30, 1992

"VI" - October 1, 1992

"VII" - October 2, 1992, motions, deliberations, verdict

"VIIA" - October 2, 1992, closing arguments and instructions

7. References to pages in the transcripts of the tapes in evidence, Government's Exhibits for identification 60 - 65, are preceded by "Exh."

8. Eddie xxxxx had testified on cross-examination that the defendant lived on the third floor, but that he himself used it also sometimes (V 160).

9. The defense had moved for a mistrial arguing that Mr. xxxxx had been charged only with distribution and attempted distribution, and the rebuttal evidence tended to prove possession with intent to distribute, which the defense contended was not a lesser included offense of the actual charges and thus resulted in a prejudicial variance of proof (VII 4, 6-7). The judge had denied the motion, commenting, "I am satisfied that the proof of the additional paraphernalia and contraband was a necessary and appropriate response and timely response to the defendant's contention that Mr. Moses was selling drugs in addition to those that were at issue in this case directly" (VII 7).

10. At trial, Moses testified that the transaction took place in the "apartment" on the first floor (III 36, 42).