IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. 9x-157 (SS) v. :
:
:
xxxxxxxxxxxxxxxxxxx, :
:
:
Defendant. :
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
MOTION TO SUPPRESS TANGIBLE EVIDENCE AND STATEMENTS
Defendant xxxxxxx, through undersigned counsel, respectfully submits this Supplemental Memorandum in support of his Motion to Suppress Tangible Evidence and Statements.
Facts
At a hearing on the Motion to Suppress on July 24, 1996, this court heard evidence from agents of the Federal Bureau of Investigation (FBI) which established the following:
1. On April 17, 1996, agents of the FBI searched premises at x0 New York Avenue, N.W. occupied by defendant xxxxxx and his family. The FBI entered the premises at about 6:00 a.m., by forcibly breaking open the front door to the premises with a battering ram. Before entering, an agent knocked loudly several times and announced "FBI, search warrant."(1) The agents then waited approximately 5 seconds before battering down the door to the premises.(2) Without dangerous or exigent circumstances, the practice of the FBI is to wait 30 seconds or so before forcibly entering premises.
2. The FBI went to the premises at xx New York Avenue, N.W. to execute two arrest warrants and a search warrant. The arrest warrants were for defendant Ralph xxxxxx for a bank robbery occurring in May, 1995 and for Lewis xxxxxx for first-degree murder occurring on March 26, 1996. The search warrant (Defense Motion Exhibit 4) was for items believed to be connected to the March 26, 1996 homicide.
3. The agents claimed that before they entered the premises at x0 New York Avenue, N.W., they knew of certain criminal activities of "the xxxxxx family." However, on cross-examination, the agents admitted that all they knew was that defendant xxxxxx's prior record was for a 1982 robbery(3) and drug offenses, and that Lewis xxxxxx had no prior convictions. The two other members of the xxxxxx family to whom the agents referred were James xxxxxx and Keith xxxxxx. At the time the agents executed the warrants, they knew both of these men to be incarcerated. Once, in 1992, the agents executed a warrant at the same premises and recovered two handguns. They never determined that those guns belonged to either Ralph xxxxxx or Lewis xxxxxx.
4. One of the objects of the search on April 17, 1996 was the handgun allegedly used in the March 26 homicide. Prior to entering the premises, the agents had no information that the handgun, or any other weapons, would be found on the premises. The agents had had the premises under surveillance for about two weeks when the forcible entry was accomplished. See, Affidavit in Support of Search Warrant, Defense Exhibit 6, page 3.
5. There was no testimony that when the FBI knocked and announced their presence and purpose there were any noises inside the house at all, and certainly no testimony that there was any evidence of attempted flight from the premises or destruction of evidence.
Argument
The forcible entry into the premises after a five-second wait violated the knock and announce requirement of 18 U.S.C. § 3109, and the reasonableness requirement of the Fourth Amendment to the United States Constitution, as interpreted in xxxxxx v. Arkansas, 115 S.Ct. 1914, 1918 (1995). Forcible entry is permitted only after the police have been refused admittance. This circuit has never held that a refusal of admittance can be inferred without giving residents of the premises an opportunity to respond to the knock and announcement of police presence and purpose. United States v. Bonner, 874 F.2d 822, 824 (D.C. Cir. 1989), represents the least amount of time this circuit has approved as sufficient to infer a refusal of admittance. In that case, a delay between knock and entry of 11 to 12 seconds was found to be sufficient, but only because the police heard suspicious noices inside the house consistent with the destruction of evidence.(4)
The government attempts to justify the forcible entry after five seconds on the ground of exigent circumstances. The government bears the burden of establishing that exigent circumstances exist. Here, the only evidence to which the government can point to justify the precipitous forcible entry is that the arrest warrants were for violent crimes. None of the cases furnished to the court by the government condone entry on such a slim showing.
Some of the cases relied upon by the government involve explicit threats to law enforcement officers. In United States v. Maden, 64 F.3d 1506, 1509 (10th Cir. 1995), suspect Maden had allegedly placed a murder contract on a police detective, demonstrating his animosity toward police. However, that factor alone did not persuade the court of the validity of the search. Additionally, the court relied upon the fact that the police used a passkey to enter, rather than entering forcibly, that there were two wanted fugitives on the premises, that a loaded gun had been seized from one of them a few months earlier, and that drugs were known to be in the apartment at the time of entry, thereby raising an inference of the presence of weapons. In United States v. Kennedy, 32 F.3d 876, 882-83 (4th Cir. 1994), cert. denied, 115 S.Ct. 939 (1995), a resident in the house, whom police had seen with a gun, had told a DEA agent that the next time he was arrested, it would be for killing a police officer. Furthermore, there was evidence of drug trafficking going on at the premises at the time of the execution of the warrant, thus raising the possibility of the destruction of evidence.
In other cases cited by the government, the police had actual knowledge that weapons or other dangerous items were on the premises. In United States v. Jewell, 60 F.3d 20, 23 (1st Cir. 1995), the presence of a pit bull on the premises was deemed evidence of possible danger to the police. However, more importantly, the police knew that the suspect had a history of convictions of crimes of violence. In United States v. Von Willie, 59 F.3d 922, 924-26 (9th Cir. 1995), the defendant was a "warlord" in a Phoenix motorcycle gang, and a reliable confidential informant told the police that weapons and drugs were on the premises. Before the police could execute the warrant, one officer inadvertently confronted the suspect, causing the police concern that if he re-entered the premises he would obtain a weapon or destroy evidence. In United States v. Maxwell, 25 F.3d 1389, 1395 (8th Cir.), cert. denied, 115 S.Ct. 610 (1994), officers were informed immediately before the search that the suspect had just purchased a handgun. Moreover, the suspect was affiliated with a violent gang, and he had been overheard on surveillance tapes detailing various assaults he had committed. Similarly, in United States v. De Parias, 805 F.2d 1447, 1457 (11th Cir. 1986), cert. denied, 482 U.S. 916 (1987), officers executing the warrant received a bulletin immediately prior to entry that the suspect was "armed and dangerous." In United States v. Brown, 52 F.3d 415, 421 (2d Cir. 1995), cert. denied, 116 S.Ct. 754 (1996), the suspect had tried to collect a drug-related debt from the confidential informant with a pump-action shotgun, the suspect had prior convictions for firearms offenses, and the confidential informant told the police that the suspect was armed. In United States v. Nabors, 901 F.2d 1351, the suspect was known to be in possession of firearms and to habitually wear a bullet-proof vest.(5)
In some cases cited by the government, it was clear that the circumstances gave rise to an inference of refusal of admittance. In United States v. Hromada, 49 F.3d 685 (11th Cir. 1995), the police knocked on the door, waited about a minute, and then forcibly entered. However, following their knock, they observed the suspect come to a large picture window next to the front door. When the police demanded entry, he continued to stand at the window but made no move to open the door. On those facts, the court found a constructive refusal to admit. In United States v. Garcia, 983 F.2d 1160, 1168 (1st Cir. 1993), the police had made a controlled buy just before the execution of a warrant, and so knew that narcotics were in the premises. The buy confirmed information provided by a confidential informant that large amounts of cocaine were being stored on the premises. The police knocked on the door and waited 10 to 15 seconds before forcibly entering the premises. The police could hear a television in the living room, as they knocked on the front door, so they could reasonably assume that the room was occupied and that they were being refused admission. In United States v. Soria, 965 F.2d 436, 439 (7th Cir. 1992), the police could see through windows of the home that the home was occupied. However, when they knocked, waited 15 to 20 seconds, knocked again, waited 15 to 30 seconds, and still got no response, the door was forcibly opened. In United States v. One Parcel of Real Property, 873 F.2d 7, 9 (1st Cir.), cert. denied, 493 U.S. 891 (1989), after the police knocked repeatedly, a man exited the premises through a side door, left the door open, and a policeman who entered could hear the police announcing their presence and purpose. Residents of the apartment were all found in a bathroom, huddled with narcotics.
Some of the cases relied upon by the government involve a common basis for upholding forcible entries -- indications that evidence is about to be destroyed. In United States v. Markling, 7 F.3d 1309, 1318-19 (7th Cir. 1993), the court upheld a search where police waited seven seconds after announcing their authority and purpose before breaking down the door. Because the search was of a small motel room, the knock was loud and easily heard, there were no noises to obscure the knock, and the police had reliable information that narcotics on the premises would be flushed, the entry was justified, the court held. In United States v. Sagaribay, 982 F.2d 906, 911 (5th Cir.), cert. denied, 114 S.Ct. 160 (1993), the police knew that heroin was in the apartment and the officers used a pass key so as to prevent destruction of property and conducted the search in the daytime, so as to avoid interference with private activities.
None of these cases rely upon the fact that the police are executing arrest warrants for suspects for crimes of violence. The facts of the cases cited by the government are so different from the facts of the instant case that the cases offer no authority upon which this court can uphold the FBI's failure to give the xxxxxx family an opportunity to respond to their knock and announcement. Given the FBI's clear failure to comply with the statute, the evidence seized during the search, and all fruits of that evidence, such as statments allegedly made by Mr. xxxxxx, must be suppressed.
CONCLUSION
For these reasons, and those previously stated, defendant xxxxxx respectfully urges the court to suppress the tangible evidence and statements.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
___________________________
Reita Pendry
Assistant Federal Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
1. The defense called two witnesses, xx xxxxxx, Mr. xxxxxx's wife, and their daughter, xxxxx xxxxxx, both of whom denied that the FBI knocked before breaking open the door of the premises. The defense contends that these witnesses were credible and that the court can rely upon their testimony to find that the FBI failed to knock and to announce their purpose before forcibly entering the premises. However, for purposes of this Memorandum, and without conceding the issue, we will assume that the FBI knocked and announced their purpose prior to entry.
2. One agent testified that the FBI waited 5 to 10 seconds before breaking open the door to the premises. Another agent testified that the wait was from 5 to 20 seconds. Both agents admitted that the wait could have been as little as five seconds. The government, in its Opposition to Defendant's Motion to Suppress Tangible Evidence and Statements, acknowledged that the wait was "perhaps five seconds." Opposition, page 2.
3. The agents had no information that this robbery was with a weapon. In fact, the conviction is for an unarmed robbery.
4. The other authorities cited in defendant xxxxxx's Motion to Suppress Tangible Evidence and Statements are incorporated herein by reference.
5. The Nabors court called the case "close," even in light of concrete information that the suspect was in possession of weapons. 901 F.2d at 1355. Furthermore, the court stressed that "[w]e do not hold . . . that every time law enforcement personnel suspect that the subject of a search warrant possesses a firearm, a split-second announcement followed by a forced entry sufficiently complies with 18 U.S.C. § 3109." The court cautioned that "[c]ases in which officers make a forced entry seconds after announcing their authority and purpose will be carefully scrutinized . . . ." Id. at 1354-55.