ORAL ARGUMENT NOT YET SCHEDULED





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No.

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



SAMUEL xxxxxx, Defendant-Appellant.



_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



________________________________________________________________



BRIEF OF DEFENDANT-APPELLANT

SAMUEL xxxxxx



_________________________________________________________________





A.J. Kramer

Federal Public Defender



Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500






District Court

Cr. No.

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES


Pursuant to Rule 11(a)(1) of the General Rules of this Court, Defendant-Appellant, Samuel xxxxxx, hereby states as follows:

A. Parties and Amici:

The parties to this appeal are Defendant-Appellant, Samuel xxxxxx, and Plaintiff-Appellee, The United States of America. There are no intervenors or amici.

B. Rulings Under Review:

This is an appeal by Mr. xxxxxx of the ruling by the district court, the Honorable Louis F. Oberdorfer, on April 1, 1992, denying his motion to suppress physical evidence (A. at 193).

C. Related Cases:

There are no related cases and this case has not previously been before this Court.

TABLE OF CONTENTS





TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii



STATUTES AND RULES 1



JURISDICTION 1



ISSUE PRESENTED 1



STATEMENT OF THE CASE 2



A. PROCEEDINGS BELOW 2



B. STATEMENT OF FACTS 3



SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 8



ARGUMENT



THE POLICE OFFICERS VIOLATED THE FOURTH AMENDMENT WHEN THEY ENTERED AND SEARCHED MR. xxxxxx' APARTMENT WITHOUT A WARRANT AND WITHOUT A REQUEST TO SEARCH AFTER MR. xxxxxx MERELY ATTEMPTED TO ILLUSTRATE HIS GIRLFRIEND'S ABSENCE BY OPENING THE DOOR AND SAYING "I'LL SHOW YOU," AND WHEN THEY CONTINUED TO SEARCH AFTER THEY UNDERSTOOD THAT MR. xxxxxx WANTED THEM TO LEAVE. . . . . . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TABLE OF CASES AND AUTHORITIES

CASES





Boyd v. United States, 116 U.S. 616 (1886) . . . . . . . . . . . . 15



Bumper v. North Carolina, 391 U.S. 543 (1968) . . . . . . . . . . . 9



*Florida v. Jimeno, 111 S. Ct. 1801 (1991) . . . . . . . . . . . . 10



Judd v. United States, 190 F.2d 649 (D.C.Cir. 1951) . . . . . . . . 13



Katz v. United States, 389 U.S. 347 (1967) . . . . . . . . . . . . 8



Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977) . . . . . . . . . . 15



Payton v. New York, 445 U.S. 573 (1980) . . . . . . . . . . . . . . 16



Schneckloth v. Bustamonte, 412 U.S. 218 (1973) . . . . . . . . . . 8



Stone v. Powell, 428 U.S. 465 (1976) . . . . . . . . . . . . . . . 15



United States v. Abbott, 546 F.2d 883 (10th Cir. 1977) . . . . . . 14



United States v. Benitez-Arreguin, 973 F.2d 823,

(10th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . 12, 13



United States v. Carter, 985 F.2d 1095 (D.C. Cir. 1993) . . . . . . 15



United States v. McCraw, 920 F.2d 224 (4th Cir. 1990) . . . . . . . 14



United States v. Mejia, 953 F.2d 461 (9th Cir. 1991),

cert. denied, 112 S.Ct. 1983 . . . . . . . . . . . . . . . . . .13



United States v. Most, 876 F.2d 191 (D.C.Cir. 1989) . . . . . . . . 14



United States v. Rodney, 956 F.2d 295 (D.C.Cir. 1992) . . . . . . . 9



*United States v. Shaibu, 920 F.2d 1423 (9th Cir. 1990),

amended by, 912 F.2d 1193 (1990) . . . . . . . . . . 9, 11, 12, 14

United States v. Springs, 936 F.2d 1330 (D.C. Cir. 1991) . . . . . 10



Warden v. Hayden, 387 U.S. 294 (1967) . . . . . . . . . . . . . . . 11






* Cases chiefly relied upon are marked with an asterisk

STATUTES


18 U.S.C. 924(c)(1) . . . . . . . . . . . . . . . . . . . . . . . 2



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



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________



No.

_______________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



SAMUEL xxxxxx, Defendant-Appellant.



_____________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________



BRIEF FOR DEFENDANT-APPELLANT

SAMUEL xxxxxx

_____________________________________________



STATUTES AND RULES



Pursuant to Federal Rule of Appellate Procedure 28(f) and D.C. Circuit Rule 11(a)(3), pertinent statutes are set forth in the Addendum to this brief.

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. 3231. A timely notice of appeal having been filed within the ten-day period of Federal Rule of Appellate Procedure 4(b), this Court has jurisdiction under 28 U.S.C. 1291.

ISSUE PRESENTED

Whether the trial court erred in finding that the officers could reasonably have inferred the defendant's consent to enter and search the entire apartment where the officers did not request permission to enter and search the apartment but did so when the defendant, after repeatedly informing the officers that his girlfriend was not home, opened the door to the apartment, merely saying "I'll show you."

STATEMENT OF THE CASE

A. Proceedings Below

On November 26, 1991, the grand jury returned a five-count indictment charging Mr. xxxxxx with distribution of cocaine base in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. 2, distribution of cocaine base within one thousand feet of a public school in violation of 21 U.S.C. 860(a), possession of more than 50 grams of cocaine base with intent to distribute in violation of 21 U.S.C. 841(a)(1) and 841(1)(A)(iii), possession with intent to distribute cocaine base within one thousand feet at a public school in violation of 21 U.S.C. 860(a), and using and carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. 924(c)(1).

On February 26, 1992, a hearing was held on Mr. xxxxxx' motion to suppress physical evidence seized from his apartment. The District Court denied Mr. xxxxxx' motion in a memorandum filed April 1, 1992. Following the denial of the motion, Mr. xxxxxx entered a conditional plea of guilty on July 17, 1992, to two of the charged offenses: possession of more than 50 grams of cocaine base with intent to distribute and using and carrying a firearm during a drug trafficking offense. The remaining three counts of the indictment were dismissed. On February 2, 1993, Mr. xxxxxx was sentenced to 181 months imprisonment. Mr. xxxxxx filed a timely notice of appeal on February 5, 1993.

B. Statement of Facts

Sergeant Francis Morgan and appellant, Samuel xxxxxx, both testified at the suppression hearing about the events which preceded the search of Mr. xxxxxx' apartment. While their testimony differed to some degree, both men agreed that the police officers never requested permission to enter or to search Mr. xxxxxx' apartment. It was undisputed, as well, that Mr. xxxxxx never explicitly granted consent to the search (Tr.I at 46, 49-50).

On November 2, 1991 at approximately 12:00 noon Officer Floyd Myers went to the 1300 block of R Street, N.W., a residential block of row houses, to make an undercover purchase of drugs (Tr.I at 52, 62). (1) In the course of his negotiation for and purchase of the drugs, Officer Myers encountered five men, and one woman who wore a black sweatsuit (Tr.I at 53-57).

As a result of the sale, police officers arrested three men, but they could not locate the woman. Sergeant Francis Morgan and his partner, Officer Fersner, set about to look for the missing female at 1321 R Street, N.W. Although they had no information that the woman had entered that building, Morgan thought "she couldn't have gone too far" (Tr.I at 34, 59).

Sergeant Morgan testified that when he and his partner approached, Mr. xxxxxx came out of the building and onto the front porch. At Sergeant Morgan's request, Mr. xxxxxx left the porch to retrieve his identification card from his truck. When Mr. xxxxxx left the porch, Morgan and his partner went inside the building without seeking or obtaining permission to do so (Tr.I at 22, 37, 39).

While Morgan was knocking at the door of Apartment 2, Mr. xxxxxx returned with his driver's license and asked Morgan what he was "doing there" (Tr.I at 22, 24, 44). Morgan told xxxxxx that he was trying to find a woman who he believed might be in the building and who was wearing a black sweatshirt. In response, Mr. xxxxxx explained that he lived in that apartment with his girlfriend and her children, and that he had not seen the woman in the building (Tr.I at 24, 43). Sergeant Morgan asked Mr. xxxxxx about his girlfriend's whereabouts and the following conversation ensued:

Morgan: Are they home?



xxxxxx: No, they are not.



Morgan: Are you sure?



xxxxxx: I know they went to the store. I'll show you.

(Tr.I at 24-25). Mr. xxxxxx opened the door. Sergeant Morgan immediately walked in and Mr. xxxxxx followed.

Sergeant Morgan walked through the front room and into the back bedroom (Tr.I at 25). When Morgan began to walk all the way through the bedroom to the kitchen, Mr. xxxxxx attempted to get the officers to leave by saying, "Oh, let's go up to my grandmother's" (Tr.I at 25-26). Sergeant Morgan agreed by saying, "Okay," but Officer Fersner responded, "No wonder he wants us to leave. Look at the bed" (Tr.I at 26). On the bed was cocaine. Mr. xxxxxx was arrested.

Morgan questioned Mr. xxxxxx about whether there was "anybody back in that kitchen with a weapon" and demanded that xxxxxx "tell me now." Mr. xxxxxx said, "No, there's not, but there's a gun in the back there. It's in a bag" (Tr.I at 26). Sergeant Morgan recovered the gun (Tr.I at 26).

Sergeant Morgan did not inform Mr. xxxxxx that he intended to enter the apartment and search each room, nor did he ask for Mr. xxxxxx permission to do so (Tr.I at 46, 49-50). Morgan testified that he did not seek Mr. xxxxxx' consent to enter and search the apartment because he did not think he would ever need to justify a search. He was questioned and testified as follows:

Q. Why didn't you ask him for a consent to search when you were in the hallway? Why didn't you ask him to sign it in the hallway?



A. I didn't think we were going to find all of that stuff in there.



Q. So you didn't see any need -- but you were going to search the apartment; weren't you?



A. I was looking for the woman.



Q. All right. Which would entail searching the apartment?



A. Just a cursory look to see if she was there, and that was all, sir.

(Tr.I at 50).

After Mr. xxxxxx' was arrested, Morgan requested Mr. xxxxxx' consent to search the house and produced a "consent to search form." However, because Mr. xxxxxx explained that the apartment was leased to his girlfriend, Sergeant Morgan did not pursue obtaining Mr. xxxxxx' consent (Tr.I at 27, 49-50). Mr. xxxxxx later provided a written statement to the police in which he said that he knew that the cocaine was in the apartment but thought that the officers would not see it because they would only "look and roll on out" (Tr.I at 46; A. at 199).

Mr. xxxxxx' testimony was essentially consistent with Morgan's testimony on the critical points. Mr. xxxxxx testified that when he returned to the front porch with his driver's license Sergeant Morgan asked him whether the woman in black had come through the building. Mr. xxxxxx told him, "She couldn't have, because the door be locked all the time" (Tr.I at 101, 102).

Sergeant Morgan walked into the building and asked xxxxxx if "anybody was home." xxxxxx told him that no one was home and followed him into the building (Tr.I at 106). Morgan knocked on the door of Apartment 2 and again asked "if anybody was home." xxxxxx explained that, "No; I'm the only one there" because, "[M]y girlfriend went to the store" (Tr.I at 107, 109). Nevertheless, Morgan knocked on the door for "about a minute" (Tr.I at 107). Mr. xxxxxx stood at door with Morgan for up to two minutes (Tr.I at 109). While Morgan and xxxxxx stood at the door of the apartment, an officer stood at the front door of the house and another officer stood in the hallway (Tr.I at 110).

Mr. xxxxxx testified that

I told him: "No, ain't nobody in there but me. So he just kept knocking and knocking. So I finally opened the door and said, "See, ain't nobody there" . . . . When I was closing it back, boom, there were cops everywhere.



* * *



I started closing the door, and then they walked in.

(Tr.I at 111-112).

During the search, Mr. xxxxxx never left the doorway (Tr.I at 113, 122). When the officers were halfway through the front room, on the way to the bedroom, xxxxxx said to the officers, "What are you doing" (Tr.I at 115, 118). The officers did not answer (Tr.I at 118). Then Officer Fersner said, "No wonder he didn't want us to come in. Look what we found" (Tr.I at 116, 119). Mr. xxxxxx testified that had the officers asked him for permission to search, he would not have given his consent to a search because he knew the drugs were on the bed (Tr.I at 120).

Following the evidentiary hearing, defense counsel principally argued that Mr. xxxxxx did not grant consent for the police to enter the apartment, but only allowed the police to look into the apartment from the doorway (Tr.II at 11). The government argued that Mr. xxxxxx consented to a full search of the apartment when he opened the door to the apartment (Tr.II at 24). In a written memorandum, the trial court found that under the circumstances of this case

a reasonable person would have understood that a consent to "see" if the woman was in the house, combined with the action of opening the door would logically lead the officers to enter and undertake a brief and cursory inspection of the various rooms of the house.

(A. at 196). The trial judge further found that "there is no evidence that Mr. xxxxxx specifically withdrew his consent when he realized that the officers had interpreted his comments to indicate that they were free to enter the apartment" and that Mr. xxxxxx' grant of consent was not coerced (A. at 195). Appellant's motion to suppress evidence was denied.

SUMMARY OF ARGUMENT

The police officers' warrantless entry into and search of Mr. xxxxxx' apartment was not justified by consent because the officers entered and searched the apartment without ever requesting Mr. xxxxxx' consent to do so and without ever receiving specific consent from Mr. xxxxxx to do so, and they continued to search and found the drugs after Mr. xxxxxx made clear to the officers that he wanted them to leave his apartment. These circumstances cannot form the basis of an exception to the warrant requirement of the Fourth Amendment.

ARGUMENT

THE POLICE OFFICERS VIOLATED THE FOURTH AMENDMENT WHEN THEY ENTERED AND SEARCHED MR. xxxxxx' APARTMENT WITHOUT A WARRANT AND WITHOUT A REQUEST TO SEARCH AFTER MR. xxxxxx MERELY ATTEMPTED TO ILLUSTRATE HIS GIRLFRIEND'S ABSENCE BY OPENING THE DOOR AND SAYING "I'LL SHOW YOU," AND WHEN THEY CONTINUED TO SEARCH AFTER THEY UNDERSTOOD THAT MR. xxxxxx WANTED THEM TO LEAVE.

It is axiomatic that a warrantless search of a home is "per se unreasonable, . . . subject only to a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347 (1967). A search of property made with the consent of the owner of the property is one exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

Where the government relies on consent to justify a warrantless entry and search, it bears the burden of proving the existence of effective consent. Bumper v. North Carolina, 391 U.S. 543, 548 (1968). That burden is heaviest when consent would be inferred to enter and search a home. United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990), amended by, 912 F.2d 1193 (1990).

Here, because Sergeant Morgan and Mr. xxxxxx were talking about whether Mr. xxxxxx' girlfriend was home, it was not reasonable for Morgan to interpret Mr. xxxxxx' statement, "I'll show you," as a consent to enter and search the entire apartment for the black-clad woman; Morgan had not even asked for permission to search the apartment for the black-clad woman or for Mr. xxxxxx' girlfriend. Then, it was doubly unreasonable for the officers to continue to search after they understood that Mr. xxxxxx wanted them to leave.

As the Supreme Court explained in Florida v. Jimeno, 111 S.Ct. 1801, 1804 (1991), "[t]he scope of a search is generally defined by its expressed object." In Jimeno, the police officer requested and received permission to search the defendant's car for drugs. Because the "expressed object" of the search was drugs hidden in the car, it was "objectively reasonable for the police to conclude that the general consent to search respondent's car included consent to search containers within that car which might bear drugs." Id. at 1804. Implicit in both the officer's express request and the defendant's express grant of permission was consent to search the car and containers in the car for drugs. See also, United States v. Rodney, 956 F.2d 295 (D.C.Cir. 1992) (officer's request to conduct a body search for drugs reasonably includes a request to conduct some search of the groin area); United States v. Springs, 936 F.2d 1330, 1334 (D.C. Cir. 1991) (because defendant "was apprised fully that the detectives would be looking for narcotics in the bag, appellant's consent to search extended beyond her tote bag to objects within the bag capable of containing drugs").

In the instant case, there was no "expressed object" defining the search; Sergeant Morgan did not ask Mr. xxxxxx for permission to enter the apartment, did not ask Mr. xxxxxx for permission to search any room of the apartment, and did not say who or what was the object of the search. Thus, unlike the officer in Jimeno, Morgan could not reasonably infer that xxxxxx had consented to a search of his bedroom or any other room of the apartment, and could not reasonably infer that xxxxxx had consented to a search for the woman in black.

Indeed, Mr. xxxxxx and Sergeant Morgan did not even have a common understanding as to the object of the inquiry. Morgan testified that he sought to search the apartment for the missing woman who wore black. In contrast, Mr. xxxxxx testified that he opened the door to illustrate that his girlfriend had gone to the store and was not present in the apartment.

The differences between Morgan's and xxxxxx' explanations of their intentions demonstrate the unreasonableness of the inference that Mr. xxxxxx consented to the entry and search of his apartment. Had Morgan been explicit about the "expressed object" of his search -- the woman who wore black -- Mr. xxxxxx could have made an informed choice whether or not to abandon his right to be free from a search. But, since Morgan failed to inform Mr. xxxxxx of the object of the search, Morgan could not then reasonably infer that xxxxxx' action in opening the door and saying, "I'll show you," was consent to search for the black-clad woman. Such an inference was objectively unreasonable. The unreasonableness of the inference is illustrated by the fact that the subject of the conversation between Morgan and xxxxxx' was whether xxxxxx' girlfriend was at the store or was at home, and by xxxxxx' testimony that he opened the door for the purpose of showing that his girlfriend was at the store, and did not intend to address the whereabouts of the black-clad woman.

Courts have not permitted police officers to conduct warrantless searches of homes without even seeking the homeowner's consent to search. (2) Under ordinary circumstances, the consent exception requires this most basic precondition: that the law enforcement officer ask the suspect if he or she consents to a search. In United States v. Shaibu, 920 F.2d 1423 (9th Cir. 1990), the Ninth Circuit addressed this very point. There, the officers, who were looking for someone other than the defendant, rang the buzzer on the outer gate of the defendant's apartment building. The defendant released the gate, and the officers entered the apartment complex and walked toward the defendant's apartment. The defendant stepped out of his apartment, leaving the door open, and walked toward the officers. The officers asked the defendant if the person who they sought was inside the apartment. The defendant turned and walked back into the apartment without shutting the door behind himself. The officers followed him into the apartment. Id. at 1424. The Ninth Circuit reversed the trial court's order denying the defendant's motion to suppress physical evidence, holding that

[i]t is one thing to infer consent from actions responding to a police request. It is quite another to sanction the police walking in to a person's home without stopping at the door to ask permission. . . . . To infer consent in this case is only a conjecture and would exceed the scope of any recognized exception to the Fourth Amendment's bar to warrantless entry of the home.

Id. at 1427. See also United States v. Benitez-Arreguin, 973 F.2d 823 (10th Cir. 1992) (suspect's shoulder shrug in response to pantomimed request to search insufficient to find valid consent to search).

As in Shaibu, the police officers here made no request to enter or to search the apartment. Although Sergeant Morgan asked Mr. xxxxxx whether he had seen a woman wearing a black sweatsuit and asked him whether he was sure that his girlfriend was not at home, at no time did Morgan ask for permission to search the apartment for either woman. Under these circumstances, as in Shaibu, to infer consent to an unstated request to search would violate the Fourth Amendment protection against warrantless government intrusions into the home.

The government failed to show, as it must, a consent that was "unequivocal and specific." Judd v. United States, 190 F.2d 649, 651 (D.C.Cir. 1951); United States v. Benitez-Arreguin, 973 F.2d 823, 826 (10th Cir. 1992). Under the circumstances here, Mr. xxxxxx' conduct could not reasonably have been construed as unequivocal and specific consent. After talking with Sergeant Morgan about whether his girlfriend was home, Mr. xxxxxx did no more than open the door to the apartment and state "I know they went to the store. I'll show you" (Tr.I at 24-25). Mr. xxxxxx' conduct and words authorized no more than a visual inspection from the door of his apartment for the express purpose of "show[ing]" that his girlfriend was not home. (3) In the context of Morgan's questions about whether Mr. xxxxxx' girlfriend was home, it was not reasonable for Morgan to interpret Mr. xxxxxx' statement, "I'll show you," as consent to a search of every room of Mr. xxxxxx' apartment, including his bedroom. United States v. Mejia, 953 F.2d 461 (9th Cir. 1991), cert. denied, 112 S.Ct. 1983 (invitation to officer to enter house to discuss drug investigation did not give officer permission to enter every room of house). See also United States v. Benitez-Arreguin, 973 F.2d 823 (10th Cir. 1992) (suspect's shoulder shrug in response to pantomimed request to search insufficient to find valid consent to search); United States v. McCraw, 920 F.2d 224 (4th Cir. 1990) (defendant's conduct in opening door to determine identity of police officers does not establish consent to enter and search); United States v. Abbott, 546 F.2d 883 (10th Cir. 1977) (where suspect's wife consented to search of passenger compartment and left to retrieve key to trunk, effective consent to search trunk in wife's absence not established).

Furthermore, Mr. xxxxxx' attempt to terminate the search once it began decisively illustrates the unreasonableness of Morgan's belief that xxxxxx consented to the search. While ". . . in the absence of a specific request by police for permission to enter a home, a defendant's failure to object to such entry is not sufficient to establish free and voluntary consent," Shaibu at 1428, see also United States v. Most, 876 F.2d 191 (D.C.Cir. 1989) (for constitutional purposes nonresistance may not be equated with consent), it is nevertheless significant that Mr. xxxxxx did, in fact, object to the officers' entry and search of his apartment. As Sergeant Morgan testified, Mr. xxxxxx made clear to the officers that he wanted them "to leave" the apartment. The import of Officer Fersner's statement that, "No wonder he wants us to leave," is that before the drugs were found Mr. xxxxxx tried to terminate the search and that the officers understood that he wanted to terminate the search (Tr.I at 26). Mr. xxxxxx' attempt to stop the search once it began, combined with the complete absence of a request to search by the officers and the lack of any explicit permission to search by Mr. xxxxxx, establishes that the warrantless search was not justified by a valid, effective grant of consent. Even if the officers had reasonably believed at first that Mr. xxxxxx consented to a search of the apartment, and even if the officers had reasonably believed that the scope of the authorized search extended to the bedroom, the officers were not justified in continuing to search after they knew that Mr. xxxxxx wanted them to stop searching. Officer Fersner was aware, before he found the drugs, that Mr. xxxxxx wanted the officers to stop searching. As explained above, the import of Fersner's statement upon finding the drugs, "No wonder he wants us to leave," was that the officers continued to search even though they understood that Mr. xxxxxx wanted them to leave. See United States v. Carter, 985 F.2d 1095 (D.C. Cir. 1993) (consent to search may be subsequently limited to withdrawn); Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977) (consent to search is implicitly limited by the person's right to withdraw his or her consent).

The officers' gave only a post-hoc nod to the Fourth Amendment mandate that searches be conducted under color of a warrant or a recognized exception to the warrant requirement; their conduct demonstrated a callous disregard for the constitution. The purpose of the Fourth Amendment is to protect citizens against precisely the sort of governmental intrusion suffered by Mr. xxxxxx, and especially to protect the "sanctity of a man's home and the privacies of life." Stone v. Powell, 428 U.S. 465, 482 (1976), quoting Boyd v. United States, 116 U.S. 616, 630 (1886). Protection of the privacy of the home

finds it roots in clear and specific constitutional terms: "The right of the people to be secure in their . . . houses . . . shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." In terms that apply equally to seizures of property and seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.

Payton v. New York, 445 U.S. 573, 589-90 (1980) (internal citations omitted).

The warrantless intrusion was particularly offensive here because, by his own admission, Sergeant Morgan entered Mr. xxxxxx' home without first asking permission because he did not think he would ever have to answer for the intrusion; he did not think he would ever have to justify the search. When asked why he did not obtain Mr. xxxxxx' consent before he entered the apartment, Sergeant Morgan testified, "I didn't think we were going to find all of that stuff in there" (Tr.I at 50). Rather, in his zeal to find the missing woman, Sergeant Morgan thought he would take "[j]ust a cursory look to see if she was there, and that was all . . ." (Tr.I at 50). Only after he discovered contraband in Mr. xxxxxx' apartment did he seek Mr. xxxxxx' consent to search the apartment (Tr.I at 27, 46, 49-50. Sergeant Morgan's unreasonable intrusion into Mr. xxxxxx' home was what the Fourth Amendment and the exclusionary rule seek to deter.

CONCLUSION

Since Mr. xxxxxx' conviction rested on evidence that should have been suppressed because it was obtained by the police through an unlawful search and seizure, his conviction must be reversed and the indictment ordered dismissed.

Respectfully submitted,



A.J. Kramer

Federal Public Defender





_______________________

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W.,

Suite 550

Washington, D.C. 20004

(202) 208-7500



CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant have been delivered by first class mail to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, Room 4229, 555 Fourth Street, N.W., Washington, D.C. 20001, this 29th day of July, 1993.



____________________________________

Sandra G. Roland

1. Numbers preceded by "Tr. I" refer to pages in the transcript of the suppression hearing on February 26, 1992, which is set forth in full in the Appendix ("A"). Numbers preceded by "Tr. II" refer to pages in the transcript of the suppression hearing held on February 27, 1992, which is set forth in full in the Appendix.

2. The government did not advance, and the facts do not support, justification for the entry and search based upon "hot pursuit" or any other exception to the warrant requirement. Warden v. Hayden, 387 U.S. 294 (1967).

3. Had Mr. xxxxxx been given a chance, he might have called his girlfriend's name from the doorway, or might have himself stepped into the apartment to walk through each room calling her name. Sergeant Morgan and his partner, however, rushed in to conduct a search before Mr. xxxxxx ever had the chance to demonstrate by himself that the apartment was unoccupied.