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UNITED STATES v. MASON

April 9, 1990

UNITED STATES OF AMERICA
v.
DARRELL MASON, Defendant


Stanley Sporkin, United States District Judge.


The opinion of the court was delivered by: SPORKIN

STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE

 This case is before the Court on defendant Darrell Mason's motion to suppress evidence seized from his apartment on October 25, 1989. It is defendant's contention that the search of his apartment violated the Fourth Amendment. According to defendant, the police had no basis for entering his apartment without a warrant. Defendant also argues that any consent he gave to the police was involuntary. The government opposes defendant's motion maintaining that the initial warrantless entry into the apartment was reasonable in light of the exigent circumstances at the time. The government further contends that the subsequent entry and search of the defendant's apartment was only undertaken after a valid written consent was obtained.

 After reviewing the defendant's Motion to Suppress, the Government's response thereto, and after hearing the testimony of fourteen witnesses, *fn1" this Court is prepared to rule on the defendant's motion.

 FINDINGS OF FACT

 The essential facts of this case are not in dispute. On October 25, 1989, several officers of the District of Columbia Metropolitan Police Department responded to an emergency call for assistance at 3107 Naylor Road, S.E., Washington, D.C. Upon arriving at this location, the officers learned that a shooting had occurred and that an individual had been wounded and was in apartment #301. The victim turned out to be the defendant Darrell Mason. The officers proceeded to interview the defendant to determine what had happened. The defendant advised the officers that when he attempted to enter his apartment #203 two masked individuals suddenly opened the door from the inside and demanded money from the defendant. The defendant's girlfriend, who had accompanied him, ran once this confrontation began. The defendant attempted to get away by running up the stairs of the apartment building. Shots were fired and the defendant was struck in the lower leg.

 The defendant managed to evade his attackers and successfully reached the third floor. The occupant of apartment #301, Tommie Hewitt, who had been alerted by the sound of gunfire and shouts in the hallway, opened the door to his apartment and pulled the defendant inside. It was Mr. Hewitt who placed a call to 911 and advised that shots had been fired and that an ambulance would be needed. These events occurred between 9:00 and 9:15 p.m. on the night of October 25, 1989.

 The police and ambulance personnel arrived on the scene at approximately 9:30 p.m. The police officers went directly to apartment #301 where they interviewed the defendant to determine what had occurred. After learning that the shooting had taken place in the corridor outside the defendant's apartment and that the gunmen had alighted from within the apartment, the officers proceeded to the second floor and apartment #203 to investigate. In the meantime, the defendant was taken by emergency vehicle to Southeast Hospital.

 According to Officer Michael Currie, when the officers reached apartment #203, they found the door ajar and heard noises coming from within the apartment. *fn2" The officers drew their weapons, entered the apartment, and proceeded to quickly search each room to determine whether any of the attackers were hiding within the apartment. The officers did not find anyone in the apartment, but they did discover that the source of the noise was either a radio or the television. *fn3"

 After assuring themselves that no one was hiding within the apartment, the officers secured the apartment and called for a crime scene investigator. At approximately 9:45 p.m., crime scene officer Rupert Knowles arrived at apartment #203. He testified that after being briefed by other officers as to what had occurred he asked whether a consent to enter apartment #203 had been obtained from the victim, Mr. Mason. After being advised that no such consent had been obtained, Officer Knowles requested Detective Gatewood to go to the hospital to try to obtain Mr. Mason's consent. While waiting to hear from Detective Gatewood, Officer Knowles proceeded to inspect the hallway area. During his examination of the scene, he found expended shell casings on the second floor stairwell. In addition, other shells were found in the stairwells between the second and third floors. He also located a bullet hole in the door of apartment #301.

 It was not until approximately 10:45 p.m. that Officer Knowles was advised by Detective Gatewood via radio transmission that a consent to examine the apartment had been obtained. When so advised, Officer Knowles entered the apartment to look for evidence concerning the shooting. It was Officer Knowles' belief that a burglary had taken place in apartment #203 and that Mr. Mason had surprised the burglars when he arrived home. With this in mind, Officer Knowles and his partner Officer Genise began to look through the apartment for evidence which would hopefully help to identify the perpetrators. Fingerprints and photographs were taken in every room.

 While in one of the bedrooms, Officer Knowles came across a plastic bag which appeared to contain a controlled substance. The bag was found protruding out from under one of the pillows on the top bunk bed. Officer Knowles testified that the substance appeared to be a large cake of crack cocaine. Officer Knowles continued his search and discovered three other items of significance: 1) a locked safe on top of one of the beds; 2) 74 small baggies containing a greenish substance; and 3) traces of a white powder were found in an ashtray along with a single-edge razor blade.

 Officer Knowles took control of the packages which he believed to contain controlled substances. Officer Knowles did not, however, attempt to open the locked safe. Rather, he went back to Detective Gatewood and advised him that it would be appropriate to either obtain a search warrant or another consent before opening the safe. Detective Gatewood thought it proper to contact a vice-officer since a significant quantity of "drugs" had been discovered in the apartment. Accordingly, vice officer Charles Porter was called to apartment #203.

 Officer Porter arrived at approximately twenty minutes to 11:00 p.m. Upon entering apartment #203, he encountered Officer Knowles and a young woman who he later learned was Mr. Mason's sister, Jacqueline Tate. Ms. Tate had come to the apartment after having learned that her brother had been injured. While Ms. Tate was in the apartment, the telephone rang and she answered it. The phone call was from Mr. Mason who was awaiting treatment at the hospital. Officer Porter asked to speak with Mr. Mason. Officer Porter got on the phone and advised Mr. Mason that the police had located a safe and that they wanted to open it. He further advised Mr. Mason that there were two options available: 1) the police could obtain a search warrant; or 2) Mr. Mason ...


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