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02/03/87 Ernest Perry, v. United States of America


February 3, 1987





Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.



Appellant was indicted for unlawful possession of heroin with intent to distribute it. 21 U.S.C. § 841(a). After unsuccessfully moving for the suppression of evidence discovered in a search of his apartment, appellant entered a conditional guilty plea, to the lesser charge of conspiracy to possess heroin with intent to distribute it, 18 U.S.C. 371, reserving right to appeal the denial of his suppression motion pursuant to Fed. R. Crim. P. 11(a)(2). On appeal, Appellant challenges the denial of his suppression motion and also seeks return of certain property seized at the time of his arrest.

On January 25, 1985, United States Park Police executed a warrant authorizing a search of Appellant's basement apartment at 1410 Swann St, NW, Washington D.C. for "heroin and or any other narcotic and drug paraphernalia, to include records of occupancy and records of distribution." Appellant contends that the affidavit on which the warrant was based failed to establish probable cause that drugs would be found in Appellant's apartment. The affidavit stated that a confidential source had told the police that Appellant was dealing heroin at the Swann street residence. The confidential source described Appellant as a "very heavy" black male in his forties, known as "Heavy," who drives a red over black Cadillac with paper dealer tags. The police also had information from other sources that Appellant was selling heroin. As the affidavit describes, the police corroborated the confidential sources' information by arranging a "controlled buy." Prior to the buy, the police searched the source and found it to be free of drugs and monies. The source was then given pre-recorded government funds and sent into Appellant's apartment. The police observed the source enter the apartment and, after a short period of time, exit and return directly to the police officers, to whom the source handed a quantity of white powder subsequently determined to be heroin.

Appellant claims the affidavit failed to establish probable cause because it did not contain information concerning the reliability of the confidential source. We agree with the district court that this argument is "without merit." The reliability of the source was sufficiently corroborated by the controlled buy, which unlike the controlled buy in United States v. Watts, 176 U.S. App. D.C. 314, 540 F.2d 1093 (D.C. Cir. 1976); - - the principal case relied on by Appellant - - presumably took place at Appellant's apartment. Although it is true, as Appellant points out, that there was "no conclusive proof" that the narcotics obtained by the source actually came from Appellant's apartment, the fourth amendment requires only probable cause, not absolute certainty. Under the "totality of the circumstances," which includes the veracity and basis of knowledge of the informant, we find no reason for upsetting the judicial officer's determination that the affidavit demonstrated a "fair probability" that evidence of drug trafficking would be found in Appellant's apartment. See Illinois v. Gates, 462 U.S. 213, 236-38, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983).

Appellant also challenges the legality of the search on the ground that the police failed to comply with the "knock and announce" requirements of 18 U.S.C. § 3109 (1982). The district court, which held a two-day hearing on Appellant's motion to suppress, found as a factual matter that "the officers did attempt to announce their purpose" and that "the defendant understood their purposes." The court thus held that the police did not violate section 3109's requirement that they be refused admission before breaking into a dwelling. Because Appellant does not question the lower court's conclusions as to any matters of law, only its factual findings, he carries a difficult burden. To prevail, he must show the district court's findings were "clearly erroneous." See United States v. Hinckley, 217 U.S. App. D.C. 262, 672 F.2d 115, 119 (D.C. Cir. 1982). Our review of the record - - in particular, the testimony of Detective Schmidt, the police officer in charge of the execution of the warrant - - reveals ample support for the district court's factual findings. Under the narrow review we exercise under the "clearly erroneous" standard, we can discern no basis for reversing the district court's finding that Detective Schmidt's version of the facts was credible.

In a separate challenge, Appellant's seeks the return of property - - $750 in cash and his red over black Cadillac - - that the police seized at the time of Appellant's arrest for purposes for civil forfeiture, *fn1 pursuant to 21 U.S.C. § 881 (1982) (the property was also seizable under District of Columbia forfeiture statutes. D.C. Code §§ 33-552 and 33-604 (1986 Supp.)). We agree with the government that Appellant cannot properly raise this challenge in a Rule 41(e) motion, since the seizure of the property does not relate to his criminal liability. Forfeiture is a civil sanction entirely separate from a criminal case. Indeed, property may be subject to forfeiture even if the owner is innocent of all criminal wrongdoing. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 40 L. Ed. 2d 452, 94 S. Ct. 2080 (1974). Accordingly, if Appellant had wanted to challenge the legality of the seizure of his property pursuant to a forfeiture statute, the proper procedure would have been to do so in the forfeiture proceeding. See United State v. Rapp, 539 F.2d 1156, 1161 (8th Cir. 1976). We therefore decline to rule on defendant's claim that the cash and car were unlawfully seized.


This appeal from an August 9, 1985 memorandum opinion and order of the District Court for the District of Columbia was briefed and argued by counsel for appellant and appellee. While the issues presented occasion no need for a published opinion, they have been accorded full consideration by the Court. See Local Rule 13(c). On consideration thereof, and for the reasons set forth in the accompanying memorandum, it is

ORDERED and ADJUDGED by this Court that the decision of the District Court appealed from herein is hereby affirmed. It is

FURTHER ORDERED, by the Court, on its own motion, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See Local Rule 14, as amended November 30, 1981, and June 15, 1982.

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