open." On this evidence, as well as on the strength of the informer's information and the presence of a car registered to an address associated with the defendant in the proximity of the apartment, a search warrant for the car was later issued. A subsequent search of the car uncovered a second gun, but no cocaine.
Defendant's claim that there was not probable cause to issue a warrant to search the apartment must be rejected. Defendant in his supporting memorandum makes much of the fact that Detective Penberg relied on second-hand information from an anonymous informer in his affidavit in support of the application for a search warrant. If the warrant rested on such information alone, the warrant could well be invalid under the tests laid out in Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964) and Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), even as those decisions are modified by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). But the warrant was issued on more than just the informer's allegations; Detective Penberg himself testified that he had personally telephoned to the apartment and negotiated a cocaine sale with a male who answered. At the hearing both Detective Penberg and the defendant offered testimony that corroborated the telephone conversation alleged in the affidavit. For example, defendant confirmed that he had a telephone conversation with a male about the time (3:00 a.m.) when Penberg says he called, but defendant testified that he could not remember whether or not the caller mentioned cocaine. Penberg's testimony about the telephone conversation, so corroborated, has substantially more probative value than defendant's testimony on that subject. Applying Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), and the totality of the circumstances test announced in Illinois v. Gates, supra, the Court finds that there was probable cause to issue the warrant for the apartment. The gun and other items found during the search of the apartment are therefore admissible evidence.
The defendant's motion to suppress the statements he made to the police is a different matter. It is well-established that statements of a suspect in custody are inadmissible unless the government has satisfied its burden of showing a knowing and voluntary waiver of defendant's right to remain silent. Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), United States v. Frazier, 155 U.S. App. D.C. 135, 476 F.2d 891, 898 (D.C. Cir. 1973). While such a waiver need not be express, courts look to all the circumstances surrounding the statements of the defendant in deciding whether he knowingly and voluntarily waived his Miranda rights. See United States v. Dorsey, 192 U.S. App. D.C. 313, 591 F.2d 922, 932 (D.C. Cir. 1978). There can be little doubt that defendant here knew of his right to remain silent at the time he answered the sergeant's questions. He was familiar with the Miranda decision, was well educated, and was read his rights. But it cannot likewise be said that he voluntarily admitted ownership of the gun in question. Under all the circumstances as described by the witnesses at the hearing, Detective Thomas's question contained an implicit threat that unless defendant admitted he owned the gun, Little, the mother of defendant's infant child, would be arrested and taken to jail along with the defendant. Such a threat, however implicit, is grounds for a finding that the defendant did not voluntarily waive his right to remain silent. See Hutto v. Ross, 429 U.S. 28, 30, 50 L. Ed. 2d 194, 97 S. Ct. 202 (1976). Defendant's statement that the gun found in the apartment was his must therefore be excluded.
A more difficult question is posed by whether defendant's statement that the police would find the car door unlocked was incriminating and whether he waived his privileges with respect to it. For one thing there is some question about whether the statement is incriminating. Indeed, it is not directly so. However, it could support an inference that he controlled the car in which a subsequent warranted search disclosed the second gun.
It is germane to the waiver issue that defendant did not make the statement about the car in the tense environment of the living/dining area of his apartment where he had admitted ownership of gun number one. The statement about the car was made outside the apartment building as the police escorted him to the vehicle that would transport him to their headquarters. Nevertheless, he was handcuffed and still very much under the control of the police. They still retained the option to go back and arrest Little. He was only slightly removed in time and space from that scene, and, it may be inferred, the scene was still vivid in his memory. The incriminating nature of his response was not so obvious as to alert even as well informed a suspect as Griffin to his right to refuse to answer the question. By the same token his answer does not, by its terms and its circumstances, evidence an intelligent waiver of his right to remain silent. Furthermore, just as the police should not have asked the questions they did about gun number one, so they should not have inquired further about the car and baby carriage in the absence of adequate waiver. The motion to suppress that statement will also be granted.
Finally, defendant challenges the warrant issued for the search of the car. He alleges that there was not probable cause to support an allegation that drugs or other illegal items were contained therein. A careful perusal of the affidavit filed in support of the application for a search warrant for the car establishes that probable cause existed independent of the defendant's statement that the car door was unlocked. The police had probable cause to believe that defendant was selling cocaine in the apartment, they knew that a car registered to defendant's mother was parked near the apartment, and they had reason to believe defendant had been using the car. Under all the circumstances, the probable cause standard established in Illinois v. Gates, supra, was satisfied.* The gun and other items discovered in the car are therefore admissible evidence.
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