IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. 96-xx0 (HHG)
v. :
:
xxxxxxxxxxxxxx , :
:
Defendant. :
MOTION TO SUPPRESS TANGIBLE EVIDENCE AND STATEMENTS
Defendant hhhhhhhhhhhhh, through counsel, pursuant to
Fed. R. Crim. P. 12(b) and the Fourth Amendment to the United States Constitution, respectfully moves the court to suppress as evidence against him at the trial of this case any and all tangible evidence recovered from or in the vicinity of a brown Mercury automobile bearing District of Columbia tag number 200IIX, N.W., in the District of Columbia, and any and all statements made to police on or after April 17, 1995, and as grounds for the Motion, shows the court:
1. Mr. xxxxxxxxxx was arrested on April 17, 1996 and charged with a bank robbery occuring on May 17, 1995, nearly one year earlier. He was presented on a complaint charging a violation of 18 U.S.C. 2113(a) and (d).
2. The government failed to obtain an indictment in the bank robbery case, and that case has been dismissed.
3. However, on May 14, 1996, Mr. xxxx was indicted by a grand jury in a five-count indictment charging unlawful possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g), and possession with intent to distribute heroin within 1000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) and 860. The instant indictment grew out of the execution of a search warrant at 30 New York Avenue, N.W., during which the police attempted to locate evidence in an unrelated case. This search of the premises at New York Avenue, which were then occupied by Mr. xxxx and several other adults, revealed the presence of two firearms, ammunition, and four grams of heroin. The premises are allegedly located within 1000 feet of Dunbar Senior High School.
4. Trial is scheduled to commence on the indictment on June 26, 1996. At trial, the government proposes to use evidence seized from the premises at 30 New York Avenue, N.W. Further, the government proposes to use certain statements allegedly made by Mr. xxxx subsequent to his arrest for bank robbery on April 17, 1996.
5. For the reasons set out herein, neither the tangible evidence nor the statements are admissible against Mr. xxxx at the trial of this case.
ARGUMENT
The Forcible Entry Into The Premises Was Unjustified
On April 17, 1996, early in the morning, members of the Metropolitan Police Department used a battering ram to forcibly enter premises at 30 New York Avenue, N.W. Mr. xxxx was in the premises, along with his wife, his daughter, and other members of his family, when the police, without any announcement of their authority or purpose, broke down the door.
This forcible breaking violated the "knock and announce" statute, 18 U.S.C. § 3109, and the Fourth Amendment to the United States Constitution. The statute provides that an "officer may break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance . . . . "
The requirement of express notice of authority and purpose is absolute -- forced entry without compliance with these prerequisites is illegal. Miller v. United States, 78 S.Ct. 1190, 1995-96 (1958); McKnight v. United States, 183 F.2d 977 (D.C. Cir. 1950). While this circuit has held that the phrase "refused admittance" can encompasses circumstances that constitute constructive or inferred refusal, United States v. Spriggs, 996 F.2d 320, 322 (D.C. Cir.), cert. denied, 114 S. Ct. 359 (1993), quoting United States v. Bonner, 874 F.2d 822, 824 (D.C. Cir. 1989), a forcible breaking is impermissible when there has been no effort by police to alert residents of the premises which are about to be searched that the police are present, and that the police are operating under the valid authority of a warrant. This circuit has never upheld a finding of constructive denial of admittance without some effort by police to alert residents and some opportunity for residents to respond. In Spriggs, 996 F.2d at 323, this court found that officers were justified in concluding that they had been constructively refused admittance when the occupants failed to respond within 15 seconds of their announcement. In Bonner, 874 F.2d at 826, a delay of 11 or 12 seconds was found to be sufficient, in light of the fact that the officers heard suspicious noises inside the house, but the court observed that, absent such noises, a few additional seconds would have been required to justify the conclusion that the officers had been refused admittance.(1)
In the instant case, because there was no effort by police to comply with the statute, there can be no inference of denial of admittance. Nor were there any exigent circumstances warranting an unannounced entry by the police. Cf., Ker v. California, 83 S. Ct. 1623, 1633 (1963) (officers' failure to give notice before entering premises to effect warrantless arrest of defendant justified by officers' knowledge that defendant was in possession of marijuana, which could be quickly and easily destroyed, and defendant's furtive conduct in eluding police shortly before his arrest, suggesting that he might be expecting the police); Masiello v. United States, 317 F.2d 121, 122 (D.C. Cir. 1963) (approving a forcible entry after 20 to 40 seconds because police officers, on the premises to execute a search warrant for evidence of a numbers operation, heard sounds which were consistent with the destruction of the evidence sought by the warrant). Therefore, the forcible entry into the premises at 30 New York Avenue, N.W. violated the statute.
The remedy for a violation of § 3109 must be suppression of all evidence seized as a result of the unjustified entry. United States v. Anderson, 39 F.3d 331, 3346 (D. C. Cir. 1994), cert. denied, 116 S.Ct. 542 (1995). Given the Supreme Court's recent decision that the "knock and announce" requirements are embodied in the "reasonableness" concept of the Fourth Amendment to the United States Constitution, xxxx v. Arkansas, 115 S. Ct. 1914, 1918 (1995), suppression is also mandated as a remedy for the constitutional violation.
The government contends that Mr. xxxx made certain statements to police, after the recovery of the drugs and guns in the premises, in which he admitted that he had the guns for protection and that he sold drugs occasionally to make extra money. These alleged statements were the fruits of the police misconduct in wrongfully entering the premises in the first instance, and as such, the statements must also be suppressed. Wong Sun v. United States, 371 U.S. 471 (1963).
Therefore, Mr. xxxx respectfully requests that this Motion be granted and that the court suppress the tangible evidence and statements as evidence against him at the trial of this case.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
___________________________
Reita Pendry
Assistant Federal Defender
Counsel for xxxx
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
1. In United States v. Kemp, 12 F.3d 1140, 1142 (D.C. Cir. 1994), this court stated that "we require that the officer wait at least ten seconds (absent some intervening exigency) before inferring that he is being refused admission and proceeding forcibly to break in," citing Bonner. However, in Kemp, the issue was whether, when the police, by knocking on the door, caused it to open, they had "broken" into the premises within the meaning of the statute. There was no issue as to the timing of the entry. This reference to Bonner is inconsistent with the court's recitation of the evidence in that case, where there was agreement that the record demonstrated a wait of 11 to 12 seconds from the start of the first announcement until entry. United States v. Bonner, 874 F.2d at 826.