Third, the warrant process in Bonner, as in this case, tested and confirmed the information that drug sales were being conducted in the premises. Moreover, the information relied upon to obtain the search warrant in this case included the actual purchase of crack cocaine from the apartment by MPD undercover officers, an important factor not present in Bonner.
Fourth, the officers here clearly announced their authority and purpose. The testimony offered at the hearing indicated that the announcement was both loud and clear. There were four loud bangs on the door, which were followed by officer Nitz's announcement. Since the officers executed the warrant at 4:30 in the afternoon, it is unlikely that those present in the apartment were in bed and did not hear or could not in some manner, either verbal or otherwise, respond to the announcement.
Fifth, shortly after the announcement, officer Nitz heard footsteps moving quickly across and then away from the front door. "When conducting a search for evidence that [can be] readily destroyed, officers may resolve the ambiguity of a noise from within the place to be searched in a manner consistent with executing the warrant safely and successfully." Id. at 825 (citing United States v. Allende, 486 F.2d 1351, 1353 (9th Cir. 1973)). In this case, Officer Nitz clearly heard sounds that could be interpreted as people in the apartment refusing entry and taking action to dispose of the drugs.
While the officers did not stand around and wait for admittance as if they were door-to-door vendors, they did wait an appreciable and prudent amount of time after announcing their authority and purpose and before entering Apartment 204B. Given the presence of the foregoing factors, particularly firsthand information that the apartment was being used as a drug boutique and the sound of hurried footsteps away from the front door, indicating that someone had heard the announcement and did not intend to respond, it was reasonable for the officers to assume that they had been refused admittance. Cf., e.g., United States v. Ruminer, 786 F.2d 381 (10th Cir. 1986) (officers' entrance through front door of dwelling, after a five to ten second delay and upon hearing commotion in dwelling held reasonable).
The facts in this case clearly support the finding that exigent circumstances existed to justify the officers' forced entrance. The possibility of the destruction of evidence and the apparent danger to the entering officers are the two salient factors that bolster this finding. The exigent circumstances were evident even before the officers announced their authority and purpose, and became only more evident after the announcement and the sound of footsteps behind the door. Furthermore, the footsteps heard by officer Nitz could reasonably be interpreted as an attempt to refuse entry or as someone in the process of destroying evidence. Accordingly, this court finds the exigencies in this case fully justify the officers' conduct.
With regard to defendant McCalla's denial through his counsel that he was read his Miranda rights before being questioned, this court credits the testimony of officer Nitz that defendant was timely informed of his rights. Since defendant McCalla did not take the stand to contradict officer Nitz's testimony, there is nothing in the record to support the position defendant wants the court to adopt. A lawyer's naked espousement of the accused's position is not evidence and cannot negate the credible and uncontroverted testimony of a police officer. As a result, the court finds that defendant McCalla's statements were legally obtained.
Upon consideration of defendants' motions to suppress, the government's opposition thereto, and the hearing held before this court, it is
ORDERED that defendants Barrett and McCalla's motions to suppress be and hereby are DENIED.
Dated: August 17, 1989
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