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UNITED STATES v. BARRETT

August 17, 1989

UNITED STATES OF AMERICA
v.
LETATIA BARRETT and MICHAEL MCCALLA



The opinion of the court was delivered by: SPORKIN

 STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE

 This case comes before the court on the motions of defendants Letatia Barrett and Michael McCalla to suppress evidence and statements obtained during the execution of a search warrant at an apartment occupied by defendant Barrett.

 Defendant Barrett moves to suppress all evidence seized from the execution of the search warrant on the basis that the Metropolitan Police Department ("MPD") officers executing the warrant forced entry into the apartment in violation of 18 U.S.C. § 3109. As a result, defendant claims that the method of execution of the search warrant was illegal and any evidence seized must be suppressed.

 Defendant McCalla moves to suppress statements he made to MPD Officer Nitz shortly after the officers entered the apartment. McCalla alleges that after the police arrested him and before they read him his Miranda rights, they asked him a series of questions. McCalla maintains that his answers to those questions should be suppressed on the basis that they were taken before he was apprised of his Miranda rights.

 FINDINGS OF FACT

 Among the witnesses presented by the government, the court heard and credits the testimony of Officer Nitz, who has been a member of the Metropolitan Police Department for six years. Defendants did not offer any testimony during the hearing.

 On April 12, 1989, two undercover MPD officers went to Apartment 204B, 2620 B 13th Street, N.W. The person who answered the door was later identified as defendant Deon Martin, A.K.A. Joseph Robinson. He told the undercover officers that the lessee of the apartment, Letatia Barrett, was in the shower and that he would help them. Mr. Martin sold the officers three bags of cocaine base.

 As a result of the April 12 purchase, officers of the Third District Vice Unit obtained a District of Columbia Superior Court search warrant for the apartment. The validity of the search warrant is uncontested. On Saturday, April 22, 1989, at approximately 4:30 pm, members of the MPD Drug Enforcement Unit arrived at Apartment 204B to execute the search warrant.

 According to his testimony and as reenacted in court, Officer Nitz approached the door of the apartment, pounded the door four times, and announced in a loud tone his authority and purpose: "Police, search warrant, open up." Officer Nitz then bent down toward the door to listen for movement inside the apartment. He heard what he described as hurried footsteps moving from the right to the left of the apartment, across and then away from the door. Upon hearing footsteps, Officer Nitz stood up and stepped back. After a short moment Officer Nitz and a second officer rammed the door open. Members of the unit then entered the apartment, with officer Nitz following them. Officer Nitz estimated the period between his announcement and entry to be between five and ten seconds. The time between announcement and "entry" in the courtroom reenactment was approximately eight seconds.

 Officer Nitz walked into the kitchen area where another officer had secured defendant McCalla on the kitchen floor. Officer Nitz verbally advised defendant McCalla of his Miranda rights and asked whether McCalla understood his rights. The officer testified that McCalla responded that he did understand his rights.

 Officer Nitz testified that after he had read the defendant his rights, he retrieved a plastic bag containing rock cocaine lying on the floor to the right of the defendant. When he questioned defendant McCalla about the cocaine, McCalla replied that he had paid fifty dollars for it and had "just bought it and was going to smoke it."

 CONCLUSIONS OF LAW

 Under 18 U.S.C. § 3109, police officers must announce their authority and purpose and be refused admittance before forcing entry into a premises. It is apparent from the testimony of Officer Nitz that he did announce his authority and purpose before entering the apartment. The question thus presented is whether the police waited long enough to have been constructively "refused admittance" before forcing their way into the apartment. This issue was recently addressed by this circuit in United States v. Bonner, 277 U.S. App. D.C. 271, 874 F.2d 822 (D.C.Cir. 1989). Judge Starr, writing for the majority, noted that "'refused admittance' is not restricted to an affirmative refusal, but encompasses circumstances that constitute constructive or reasonably inferred refusal." Id. at 824 ...


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