The opinion of the court was delivered by: OBERDORFER
The story begins when Detective Alan Penberg of the Narcotics Branch of the District of Columbia Metropolitan Police Department submitted an affidavit in support of his application for a search warrant to Judge Hamilton of the D.C. Superior Court on April 27, 1983. The affidavit stated that an anonymous informant had told Detective Penberg that the defendant was selling cocaine from Apartment No. 106 at 50 Hawaii Avenue in Northeast Washington. The informer also stated that the defendant possessed a handgun, and provided Detective Penberg the telephone number of the apartment and the make and model of the car defendant was alleged to be driving. Penberg stated in his affidavit that he went to 50 Hawaii Avenue, observed a car of the make and model identified by the informant, and confirmed that it was registered to an address previously used by the defendant. He also discovered that the apartment and the telephone number were listed under the name of Linda Little. The affidavit further stated that Detective Penberg called the telephone number of the apartment, asked for "Odell," and negotiated a purchase of cocaine. On this information, Superior Court Judge Hamilton issued a warrant for a search of the apartment.
On May 2, 1983 at 9:34 a.m., eight or ten D.C. police officers, including Sergeant Ramon Gonzalez, Detective Carl Stump, and Detective Tyrone Thomas, executed the search warrant. They were admitted to the apartment by the defendant. Also on the premises at the time were Linda Little, defendant's girlfriend, and Odell Griffin Jr., their minor child. Sergeant Gonzalez remained with the defendant and Little in the dining area of the apartment while Stump and Thomas searched the bedroom. Stump discovered a.38 caliber revolver in the bedroom, commented to Thomas that defendant was a convicted felon and could not possess a gun, and then went to the dining area where he told Gonzalez in the presence of the defendant that a gun had been found. Gonzalez then placed defendant under arrest, indicated that he was not placing Little under arrest "at this time," and read both defendant and Little their Miranda rights from a card ("P.D. 47") provided by the police department. Gonzalez did not ask defendant whether he wished to waive any of his rights, nor did he read to defendant, or ask him to fill out, the back of the P.D. 47, which contains a written waiver form and provides a place for the suspect to sign as evidence of a waiver. Stump then returned to the bedroom. A few moments later, Detective Thomas entered the dining area and asked "Whose gun is this" while looking at both Little and the defendant. Defendant replied that the gun was his. Defendant testified that he feared that Little (who was on the verge of hysteria) would be placed under arrest and taken away from the child unless he answered.
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.
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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