Appeal from the Superior Court of the District of Columbia; Hon. Steffen W. Graae, Trial Judge
Rogers, Chief Judge, and Newman and Belson, Associate Judges. Opinion for the court by Chief Judge Rogers. Associate Judge Newman concurs in the result.
The opinion of the court was delivered by: Rogers
Appellant appeals his conviction of possession of an unregistered firearm, ammunition and drug paraphernalia, D.C. Code §§ 6-2311 (a), -2361 (3) (1989 Repl.) and 33-603 (a) (1988 Repl.), on the ground that the physical evidence should have been suppressed since it was discovered during a search that violated the District of Columbia's "knock and announce" statute, D.C. Code § 33-565 (g) (1988 Repl.). The trial Judge found that exigent circumstances justified the police action. We affirm. *fn1
A search warrant for 1465 Morris Road, S.E., was issued based on information obtained by Inspector Shirk from a confidential source who made a controlled purchase of drugs at that location about which the police had been receiving complaints for six months. The informant, while watched by Investigator Shirk, entered the house on January 7, 1988, and emerged fifteen minutes later with a plastic bag containing rock cocaine. The informant told Investigator Shirk that in addition to drugs, there were several weapons in the house and that a man armed with an automatic gun was seated in the living room next to the front window.
Because of the suspected presence of automatic weapons, Investigator Shirk sought the assistance of the Emergency Response Team (ERT) in executing the search warrant. On January 12, 1988, around 9:00 p.m., the ERT officers and others, all in police uniform, having been briefed on the types and locations of weapons expected to be in the house, drove to the house in a marked police van. Lieutenant Pope, the supervisor of the ERT team, followed in a marked police car.
The police vehicles stopped a few doors short of 1465 Morris Road in order to minimize the chances of being seen. As the vehicles pulled over to the curb, on the wrong side of the street, Shirk and Pope saw a man come out of the house, look in their direction, and run back inside. Pope testified that he heard the man yell in a loud voice "police officers, police officers," or similar words, as he reentered the house, slamming the door. *fn2 Shirk told the van driver that they had been seen. Pope also warned the ERT team over the radio that they had been observed by someone inside the house. *fn3 Officer Williams, a member of the ERT team, testified that prior to the van stopping she heard Pope's radio transmission that they had been seen. Officer Muslim, another ERT officer, heard Shirk warn the driver they had been spotted and also heard Pope "yell something to the effect that they spotted us." *fn4
As Shirk got out of the van and approached the house, the ERT team ran from the back of the van to the door of the house. Officer Muslim, carrying a body shield, went ahead, knocked on the door, and then placed the shield up against the window, which was almost adjacent to the door, about 12 inches away. When Muslim knocked on the door and announced police, we have a search warrant, he heard "some scrambling and noise on the inside of the building like one was running actually upstairs or through the house."
Sergeant Exum, the entry team leader, who had a battering ram, followed with other officers; according to Inspector Pope, Exum announced "in a loud and clear voice, police officer, we have a search warrant, waited a very short period of time at which point the door was struck with a ram." Pope estimated that the officers waited about three seconds before ramming the door: "approximately 3 to 5 seconds, at the most" having passed since Muslim knocked and Exum announced. *fn5 Approximately 10 seconds elapsed between the time the man who saw the police sounded the alarm and when Officer Muslim knocked on the door.
As the police officers entered, they saw a stool by the front door *fn6 and appellant sitting alone at the dining room table, facing toward the window of the living room, near two loaded handguns in plain view and several items of narcotics paraphernalia. A search of appellant yielded a plastic bag containing cocaine and $45 cash. A jacket in the dining room with appellant's identification contained several rounds of ammunition.
Appellant filed a motion to suppress the physical evidence on the ground that the search was illegal since the police had failed to wait long enough between the announcement of their presence and their forced entry. He further argued that any information obtained by the police before arriving at the scene should be disregarded in determining whether exigent circumstances justified their entry. The trial Judge agreed that the police had failed to wait a reasonable time before entering the premises, and thus had violated the knock and announce statute, but denied the motion to suppress on the ground that exigent circumstances justified the police officers' entry. The Judge found that the police reasonably believed that drugs were being sold in the house, that the house was guarded by a man with an automatic gun at the front window, and that the occupants had been alerted to their arrival.
D.C. Code § 33-565 (g) (1988 Repl.) provides:
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his ...