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UNITED STATES v. SINCLAIR

July 30, 1990

UNITED STATES OF AMERICA,
v.
DEAN SINCLAIR, a/k/a TONY HALL, Defendant


Louis F. Oberdorfer, United States District Judge.


The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE

 Defendant Sinclair is charged with possession with intent to distribute more than five grams of cocaine base. Sinclair has moved to suppress evidence seized from the house in which he was arrested, arguing that the police failed to knock and announce their presence in violation of 18 U.S.C. § 3109.

 I.

 At a suppression hearing held on June 6, 1990, Police Officer William P. Shirk testified to the following facts. On April 3, 1990 at approximately 10:00 p.m., Officer Shirk, along with eight other officers, arrived at 2707 Robinson Place, S.E., apartment #203, Washington, D.C., for the purpose of executing a search warrant. Officer Shirk gave the door a heavy slap with his open palm. The door swung open. He said "Police, Search warrant," in a loud voice. On direct examination he testified that he heard people moving about; on cross examination he clarified that he heard shuffling feet and noise resembling a chair falling over. He entered. When he entered, people were getting up from a table. The time elapsed was one to two seconds.

 Defendant presented two witnesses, both friends of the defendant, who had been inside the house when the police entered. Witness Sannie Williams testified that the police burst in, with a "boosh" sound that sounded like they hit the door with an object, and that they did not identify themselves. Witness Leonard Hight testified that he heard a "boom" and the police burst in with guns drawn.

 Thus, defendant's witnesses contradicted the officer's testimony as to whether he announced himself. However, the officer's testimony was credible: the officer announced.

 II.

 The knock and announce statute, 18 U.S.C. § 3109, states:

 
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 a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

 The Supreme Court discussion of the purpose and history of the statute in Miller v. United States, 357 U.S. 301, 2 L. Ed. 2d 1332, 78 S. Ct. 1190 (1958) revealed that the common law recognized a limited authority in law enforcement officers, after announcing themselves, to break the door of a home to arrest for felony. Id. at 307-09.

 The statute's condition that the officer be "refused admittance" does not require actual or affirmative refusal. Constructive refusal, established only by examination of the circumstances of the entry, is sufficient to satisfy the statute. See United States v. Bonner, 277 U.S. App. D.C. 271, 874 F.2d 822, 824 (D.C. Cir. 1989); Masiello v. United States, 115 U.S. App. D.C. 57, 317 F.2d 121, 122 (D.C. Cir. 1963). Bonner held that a time period of ten to twelve seconds between the first knock and the forced entry satisfied the statute where the officers were searching for drugs which are easily destroyed and whose traffickers often carry firearms, where the officers knocked and announced twice during the ten to twelve second period, and where the officers heard sounds consistent with refused admittance and destruction of drugs, such as scampering sounds.

 III.

 Moving to suppress the evidence seized on the grounds that the officers did not comply with the knock and announce statute, defendant argues that there was no constructive refusal and that there was no showing at the hearing on the motion that the officers interpreted the sounds they heard as exigent circumstances. Defendant contends that, though the facts at hand are similar to those in Bonner to the extent that the officers were searching for drugs, Bonner can be distinguished from the instant action. Defendant argues that in Bonner the police knocked and announced twice whereas in this case there is disputed testimony as to whether there was even one knock and announce. Defendant also notes that in this case Detective Shirk did not testify as to whether he interpreted the shuffling and falling chair as sounds consistent with ...


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