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.
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.
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.
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 refusal to admit or destruction of evidence. Lastly, defendant contends that there is a significant difference between the ten to twelve seconds wait in Bonner and the one to two second wait in the instant action.
The government opposes defendant's motion on several grounds. First, the government would have the Court find that, once faced with an open door, the police had no obligation to comply with 18 U.S.C. § 3109. However, an officer who opens a closed, but unlocked, door violates the statute. Sabbath v. United States, 391 U.S. 585, 20 L. Ed. 2d 828, 88 S. Ct. 1755 (1968).
Considering the purposes of § 3109, it would be a "grudging application" to hold . . . that the use of "force" is an indispensible element of the statute. To be sure, the statute uses the phrase "break open" and that connotes some use of force. But linguistic analysis seldom is adequate when a statute is designed to incorporate fundamental values and the ongoing development of the common law.
Id. at 589 (Footnote omitted.)
The government cites several cases from other circuits which it asserts demonstrate that there is unanimous agreement that entering through an open door does not violate Section 3109. In these cases, however, the police entered in the presence of a defendant and in many of them, the entry was not to a private home. E.g., United States v. Remigio, 767 F.2d 730, 733 (10th Cir.), cert. denied 474 U.S. 1009, 88 L. Ed. 2d 465, 106 S. Ct. 535 (1985) (entry with defendant present); United States v. Di Stefano, 555 F.2d 1094, 1100 n. 5 (2d Cir. 1977) (defendant present); United States v. Lopez, 475 F.2d 537, 541 (7th Cir.), cert. denied, 414 U.S. 839, 94 S. Ct. 89, 38 L. Ed. 2d 74 (1973) (entry into hotel room with defendant present); United States v. Johns, 466 F.2d 1364, 1365 (5th Cir. 1972) (entry into gambling building with defendant present). Furthermore, controlling precedent in this circuit is to the contrary. In Keiningham v. United States, 109 U.S. App. D.C. 272, 287 F.2d 126 (D.C. Cir. 1960), the court clearly stated that "a person's right to privacy in his home . . . is governed by something more than the fortuitous circumstance of an unlocked door and . . . the word 'break' as used in 18 U.S.C. § 3109 means "enter without permission." See also Hair v. United States, 110 U.S. App. D.C. 153, 289 F.2d 894, 897 (D.C. Cir. 1961).
The government's argument that the plain meaning, underlying purpose, and common law underpinnings of section 3109 do not support the conclusion in Keiningham is unconvincing. To hold that following a knock and announce, a police officer may, consistent with 18 U.S.C. § 3109, enter through a door that has fallen open from the force of the knock, would significantly curtail the privacy right which is the central purpose of the Fourth Amendment. A person who has no door nonetheless has rights to be free from police intrusion in the home. Though it may be reasonable to expect that a person whose door happens to be physically open maintains somewhat, but only slightly, less privacy than a person whose door is closed but unlocked, that right is still significant. Discussing the history of the statute in Miller, the Supreme Court cited the following remarks attributed to William Pitt, Earl of Chatham, speaking before Parliament in 1763:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement!