UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeals from the United States District Court for the District of Columbia, Criminal Action Nos. 87-00059-01 and -02.
Wald, Chief Judge, and Starr and D. H. Ginsburg, Circuit Judges. Opinion for the Court filed by Circuit Judge Starr. Dissenting opinion filled by Chief Judge Wald.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STARR
This case requires us to determine whether Metropolitan Police Department officers, in executing a search warrant, complied with the federal "knock and announce" statute, 18 U.S.C. § 3109 (1982). That statute provides in pertinent part:
The officer may break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance . . . .
The search at issue was supported by a warrant, the validity of which appellants do not contest. In securing the warrant, a District of Columbia police officer related that a reliable informant had reported that "cocaine [was] being sold from within the [apartment]" in question and described the results of a controlled purchase of cocaine (with additional amounts observed) at that location. A warrant was thereupon issued for "cocaine and related paraphernalia, books . . . and other papers relating to the distribution and trafficking in narcotics" inside the apartment.
To execute the warrant, six or more MPD officers presented themselves at the front door of the apartment just before 8:00 p.m. Suppression Hearing Transcript ("Tr.") 63-64. Lieutenant Gales led the search. Investigator Neill stood across from Lt. Gales, also near the door. Lt. Gales knocked three times and announced to those he knew to be within, "Police officers, open up, we have a search warrant." Id. at 55. Ne paused and repeated the procedure. Officer Neill testified that he then heard what sounded like footsteps running from the door. Id. at 42-43, 51. Lt. Gales testified that "it seems as though I could hear some faint thumping or bumping inside the premises, and I ordered that the door be forced." Id. at 56; see also id. at 71, 75.
Using a battering ram, the officers succeeded immediately in opening the door. As the officers entered the apartment, they spotted appellant Bonner moving toward the bathroom and appellant Turner emerging from that room. The toilet was flushing. The officers thereupon arrested appellants and discovered, among other items, scores of vials of crack cocaine and small parcels of powdered cocaine; two sawed-off shotguns and various pieces of ammunition; and more than $6,000 in cash.
Prior to trial, appellants moved to suppress the evidence discovered in the search. They argued that the officers entrance into the apartment failed to comply with the knock-and-announce statute. *fn1 Appellants did not challenge the validity of the underlying warrant, nor did they gainsay that the officers gave notice of their "authority and purpose." Rather, their sole argument was (and is) that the officers had not waited long enough between the first notice and subsequent entrance to be, in effect, "refused admittance."
During an extensive suppression hearing, the District Court conducted a reenactment of the events outside the apartment door. That reenactment indicated that eight to nine seconds passed between Lt. Gales' first knock and the end of the second announcement, a result in accord with other testimony. Tr. 56, 93. After that period and before entrance, a few additional seconds passed, during which the officers heard noise from within; Lt. Gales ordered the door knocked down; and the officers rammed the door open and entered. Based on the evidence of record, the District Court concluded that the knock-and-announce statute did not condemn the officers' action. See infra note 12. Convicted of possessing cocaine, see 21 U.S.C. § 844 (1982 & Supp. IV 1986), and other offenses, appellants now challenge the trial court's conclusion with respect to the officers' entrance. We agree with Judge Sporkin's conclusion that the officers did not run afoul of section 3109 and therefore affirm the convictions. II
We believe that the officers' entrance conformed to the standards of section 3109. Even were that not so, we are further satisfied that exigent circumstances obtained so as to justify any deviation from complete compliance with the terms of the statute.
As we indicated in the factual narrative, the officers in this case knocked on the apartment door, identified themselves, and stated their specific purpose. It is therefore undisputed that the officers (through Lt. Gales) gave "notice of [their] authority and purpose." 18 U.S.C. 3109. Appellants' entire challenge rests on the narrow argument that the officers were not "refused admittance," id., before they knocked open the door. They maintain that the ...