The opinion of the court was delivered by: PARKER
Barrington D. Parker, Senior District Judge:
Counsel for defendant Christobal Rodriguez has moved the Court to reconsider its ruling and order entered on May 19, 1987, rejecting a challenge to the execution of the warrant to search the premises, 1368 Quincy Street, N.W. Defendant's counsel argues that the police officers who executed the search warrant violated the provisions of Title 18 U.S.C. § 3109.
Specifically, he contends that the police failed to wait a sufficient amount of time before forcing entry with a battering ram and that "there were no facts indicating any circumstances which would lead a reasonable [person] to conclude evidence was being disposed of or even attempts to do such." (Defendant's Motion to Reconsider at 6.)
After reviewing the memoranda and arguments presented by counsel and reflecting upon the facts of this case, this Court grants the defendant's motion and concludes that the District of Columbia police officers failed to wait until they were refused admittance as required by the "knock and announce" rule and that no exigent circumstance existed to otherwise excuse their failure to comply with the clear language of the statute.
The factual record in this case is fully set forth in this Court's May 19th opinion. Defendant Rodriguez, a suspected drug trafficker resided with his wife and baby at the Quincy Street residence. Co-defendant Rafael Velasquez (age 19) and his 17 year old brother resided in the basement of the premises with his parents, brothers and a sister. Velasquez was also a suspected drug trafficker. There were other residents in the dwelling, all related by either blood or marriage. Velasquez is a nephew of Rodriguez.
clearly shows and the parties concede that the police executing the search warrant knocked, announced themselves, and then waited only a matter of seconds before breaking open both the basement and front doors of the dwelling with a battering ram. Officer Bertie Shields testified that he knocked on the basement door and stated "Police. We have a search warrant and will execute it." He further stated that the officers on the warrant detail waited for "approximately 5 seconds" before breaking down the door. M.H. I at 33. Officer Michelle Jones offered similar testimony, that the officers entering the first floor waited "approximately 3 to 5 seconds" before knocking down the door. Id. at 127-28.
The two officers testified that they forcibly entered the premises to prevent the loss of evidence. Their fear was solely based on the fact that "narcotics are easily disposed of." M.H. II at 10. The officers candidly acknowledged that they heard no noises or suspicious sounds from within the house nor were they in any way apprehensive or fearful that the occupants were engaged in efforts to dispose of contraband or seeking to flee.
In executing a search warrant police are permitted to forcibly enter the premises only if "after notice of [their] authority, [they are] denied admittance." Miller v. United States, 357 U.S. 301, 306, 2 L. Ed. 2d 1332, 78 S. Ct. 1190 (1958). See also 1 Wharton's Crim. Proc. Supp. § 170. Section 3109 does not specify how long law enforcement officers must wait before they are constructively denied admittance and are entitled to forcibly enter the premises.
Our Circuit has adopted a flexible timing rule. "The time that section 3109 requires officers to wait before they may construe no response as a denial of admittance depends largely on factual determinations made by the trial court." United States v. Davis, 199 U.S. App. D.C. 95, 617 F.2d 677, 695 (D.C. Cir. 1979) (police knocked, announced themselves and waited 15 to 30 seconds before entering, no exigent circumstances raised).
However, this Court has been unable to uncover any reported case in this or any other circuit, upholding the legitimacy of a forcible entry when the officers waited less than 10 to 20 seconds. Even in Davis, the police waited for a much longer period than the amount of time waited here. See also United States v. Smith, 171 U.S. App. D.C. 342, 520 F.2d 74 (D.C. Cir. 1975) (in executing warrant for narcotics, police knocked, announced and waited 15 seconds at which time they heard suspicious sounds causing them to fear suspect was disposing of drugs and then forcibly entered premises); Masiello v. United States, 115 U.S. App. D.C. 57, 317 F.2d 121 (D.C. Cir. 1963) (in executing a search warrant to recover gambling papers, officers knocked once without announcement, waited 10 to 20 seconds, knocked second time, announced and waited 10 to 20 more seconds, heard rustling papers, feared evidence would be destroyed and entered). United States v. Alatishe, 616 F. Supp. 1406 (D.D.C. 1985) (knocked once, waited 30 seconds, knocked second time and waited 15 additional seconds). Even in the case chiefly relied upon by the government, United States v. James, 246 U.S. App. D.C. 252, 764 F.2d 885 (D.C. Cir. 1985), and upon which this Court also relied in its original decision, the police knocked and announced themselves repeatedly and then waited 30 seconds before battering down the door. Further, in most of the cases cited above where the police only waited a short time before forcibly entering the premises, they acted with haste because they heard contemporaneous sounds emanating from and/or saw activities within the premises, which created a reasonable belief that the suspects would attempt to escape, to resist or to destroy evidence. See also United States v. Ruminer, 786 F.2d 381, 384 (10th Cir. 1986) (officers waited 5 to 10 seconds and upon seeing suspect leaving room, feared he would destroy evidence and then forcibly secured entrance to the premises).
Those few seconds that the officers waited before resorting to the battering ram, afforded little if any time for any occupant to hear and respond to a knock, let alone to make it to the door. The warrant in this instance was served at 6:30 o'clock in the morning, a time when the occupants were in bed, still sleeping. In fact, the search warrant officers found all the basement occupants of the premises, including the codefendant, his brother, sister and parents, still dressed in their pajamas. The codefendant Velasquez, along with a younger brother, were found in bed in their bedroom. Given the important purposes behind 3109 to protect "the precious interest of privacy as summed up in the ancient adage that a [person's] house is his castle" Miller v. United States, 357 U.S. at 307, this Court concludes that 3 to 5 seconds is insufficient time to constitute "refused admittance" under the statute.
Courts have waived the requirements of the "knock and announce rule" if the police can demonstrate that exigent circumstances necessitate rapid entry. These circumstances include a reasonable belief that the evidence will be imminently destroyed. United States v. James, supra; United States v. Smith, 171 U.S. App. D.C. 342, 520 F.2d 74 (D.C. Cir. 1975); United States v. Hubbard, 493 F. Supp. 209 (D.D.C. 1979), aff'd, United States v. Heldt, 215 U.S. App. D.C. 206, 668 F.2d 1238 (1981), cert. denied, 456 U.S. 926, 102 S. Ct. 1971, 72 L. Ed. 2d 440 (1982). See also, Annotation, What Constitutes Violation of 18 U.S.C. 3109 Requiring Federal Officer to Give Notice of His Authority and Purpose Prior to Breaking Open Door or Window or Other Part of House to Execute Search Warrant, 21 A.L.R. Fed. 820. In every case in which the courts have invoked the exigent circumstance exception, the police have testified that they had some specific and immediately ascertainable reason for fearing the loss of the desired evidence. In narcotics cases, the police generally testify to hearing some suspicious noises on the other side of the door which created a reasonable belief that the inhabitants were destroying the contraband. See Masiello and Smith, supra. In the ...