have testified in support of their contention that they obtained the keys from the resident manager. Nothing in the record lends support to a contention that the defendants were "guests" of the owners of the property. Second, there is no evidence as to the length of time that the defendants had been at that address. The evidence suggests that once the officers were advised that two men were selling drugs at the address, they almost immediately proceeded to the address and arrested the defendants. Since the room appeared to be nothing more than a storage room, it seems clear that the defendant were not living at the address. Third, nothing in the record would support a contention that the defendants had the right to exclude others from the room. Fourth, while the door was closed, it was apparently unlocked. Fifth, the defendants have demonstrated no connection with the room and have not demonstrated that they were legitimately on the property.
Under the above circumstances, the Court cannot find that the defendants had a reasonable expectation of privacy in the property and therefore, they do not have standing to challenge the search. It is the defendants who have the burden of proving that the search was illegal and that they had a legitimate expectation of privacy in that room. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633 (1980). The defendants have failed to meet that burden.
Assuming for the moment that the defendants have standing, the Court finds that the defendants consented to the entry of the police into the room in any event. Delauder knocked on the door, Heyward asked, "who is it" and an officer responded "The police." Heyward immediately opened the door. When an officer asked did he live there, Heyward did not respond, rather, he backed away and allowed the officers to step inside. Once inside, the officers observed the drugs and weapon on the table and took appropriate action.
The defendants contend that they did not consent to the entry of the officers but they can find no support for that contention in the record. They argue that they allowed the officers to enter the room because the officers had pulled their guns, however, the record is quite clear that the officers knocked, and in response to Heyward's question, "Who is it", responded, "The police." Notwithstanding that he knew the police were on the other side of the door and that drugs and weapons were in the room, Heyward opened the door without any apparent objection from Breland. Up to this time, it is clear that Heyward had not observed any weapons and did not know how many officers were on the scene. When Heyward opened the door, he did not merely crack the door, rather; he opened it two feet. This is consistent with consent, otherwise, one would suspect that the door would not have been opened in the first instance, and if opened because the defendants were not sure whether the police were really at the door, the door would have been opened only enough so that the defendants could determine the identity of their unexpected visitors. When Heyward was asked whether he lived there and then stepped back, the first officer had not drawn his weapon; he did so only after walking into the room. While Officer Stewart testified that she had drawn her weapon before entering the room, she also testified that she was the last officer in the room. By that time the first officers were in the room and the drugs were probably in plain view. Since she was the last officer entering the room, it seem unlikely that Heyward saw her weapon.
While the defendants contend that they allowed the officers into the room due to the show of force, presumably the guns, they did not offer any evidence to support that contention. Finally, the fact that the defendants willingly made statements even after being advised of their rights, supports the finding that they consented to the entry and search by the officers. "To determine whether consent is voluntary, a court must apply a 'totality of all the surrounding circumstances' test." United States v. Lloyd, 276 U.S. App. D.C. 118, 868 F.2d 447, 451 (D.C. Cir. 1989). Here, there was no show of force or aggressive action by the police officers. While it is obvious that the defendants would have preferred that the police had not entered the room, that is not the test upon which cases of this nature must be decided.
The Court finds that the defendants consented to the entry of the officers.
In sum, the Court finds that the defendants did not have a legitimate expectancy of privacy, and moreover, that in any event, they consented to the entry of the officers into the room.
It is hereby
ORDERED that Breland's motion to sever defendants is denied, and it is further
ORDERED that Breland's motion to suppress statements it denied, and it is further
ORDERED that the defendants' motions to suppress evidence are denied.
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