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01/15/91 JANICE WASHINGTON v. UNITED STATES

January 15, 1991

JANICE WASHINGTON, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. George W. Mitchell, Trial Judge

Ferren and Terry, Associate Judges, and Mack, Senior Judge. Opinion for the court by Senior Judge Mack. Dissenting opinion by Associate Judge Terry.

The opinion of the court was delivered by: Mack

Appellant Washington, having entered a conditional plea of guilty to charges of possession of a prohibited weapon (D.C. Code § 22-3214(a)(1989 Repl.)), and possession of unregistered ammunition, (D.C. Code § 6-2361 (1989 Repl.)), challenges the pre-plea denial by the trial court of her motion to suppress evidence. She contends that the trial court erred in finding that exigent circumstances justified the forced entry by police, acting without a warrant, into her bedroom, the search therein, and seizure of a gun. We agree and reverse.

I.

At approximately 1:45 p.m. on March 28, 1988, four officers of the Metropolitan Police Department responded to a Clifton Street, N.W. apartment, after receiving a radio call concerning "a woman with a gun." A young woman answered the officer's knock at the door. She appeared to be upset and told the officers "my sister has a gun, and I want it out of the house." While one of the officers remained with the young woman, the other three proceeded down a hallway to the room pointed out as appellant's room. (The apartment was owned by the mother of the sisters.) The bedroom door was locked. The officers knocked and asked the occupant to come outside. Receiving no reply, they waited a few seconds, than forced the door open, breaking it off its hinges. In the room, the officers found appellant and her three-year-old son sitting on a bed. No other occupants, other than the sisters and the child, were in the apartment at this time.

The officers asked appellant "Where is the gun?" She replied, "I have no gun." Appellant's son was removed from the room, and two of the officers began searching for the gun, while the other one kept his attention fixed on appellant. One officer looked into a clothes closet and proceeded to pat and examine the articles inside. He took a closed shopping bag off the shelf, in which he felt a hard object. Opening the bag, he found a loaded semi-automatic machine gun. Appellant was arrested. A motion to suppress was denied. A conditional plea of guilty was entered and this appeal followed.

II.

"'Searches conducted outside the judicial process, without prior approval by Judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.'" Mincey v. Arizona, 437 U.S. 385, 390, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978) (citations omitted). One exception is that of "exigent circumstances." When a trial court has concluded that exigent circumstances justify a warrantless search, our review entails nothing more complex than examining the facts as perceived by the police at the time of the search. We accept the trial court's findings unless they are clearly erroneous. Gant v. United States, 518 A.2d 103, 107 (D.C. 1986); Derrington v. United States, 488 A.2d 1314, 1323 (D.C. 1985), cert. denied, 486 U.S. 1009, 100 L. Ed. 2d 201, 108 S. Ct. 1738 (1988). Facts being what they are, however, they must be examined in the context and sequence in which they occur. For example, exigent circumstances in a fast-moving street encounter may not be exigent circumstances in another factual context. In this regard, it bears repeating once again that the constitutional interest which protects a home against intrusion is a precious one. As the Supreme Court has noted:

We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was not done to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade the privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing, and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to the constitutional requirement and excuse the absence of a search warrant without showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.

McDonald v. United States, 335 U.S. 451, 455-56, 93 L. Ed. 153, 69 S. Ct. 191 (1948).

Under the facts of this case, we are hard pressed to conclude that the exigencies of the situation made the warrantless, forcible entry and search of appellant's bedroom imperative. *fn1

A.

The trial court, in finding that the police in this case acted reasonably under exigent circumstances, relied upon Dorman v. United States, 140 U.S. App. D.C. 313, 435 F.2d 385 (1970)(en banc), involving circumstances similar to hot pursuit and ending with contemporaneous seizure with arrest. Dorman established a seven-prong query for judging the validity of warrantless searches of dwellings and seizure therein: i.e., whether, (1) a grave offense was involved, particularly a crime of violence; (2) the suspect was reasonably believed to be armed; (3) there was a clear showing of probable cause; (4) there was strong reason to believe that the suspect was in the dwelling; (5) there was a likelihood of escape if the suspect was not swiftly apprehended; (6) the police effected a peaceful entry as opposed to a breaking; and (7) the entry occurred during night. Dorman, supra, 140 U.S. App. D.C. at 320-21, 435 F.2d at 392-93; see also United States v. Lindsay, 165 U.S. App. D.C. 105, 110, 506 F.2d 166, 171 (1974) (summarizing the Dorman test). To the extent that Dorman could be controlling, it does not support the finding of exigent circumstances in the instant case. Contrary to the finding of the trial court, and the position taken by the government, the officers, at the time of entry, lacked probable cause to believe that any criminal activity had occurred, let alone the commission of a grave offense. Although the officers had information that appellant possessed a gun, they did not know what kind of gun she possessed, whether the gun was registered, whether appellant was licensed to, or did in fact, carry it, or whether she had used it. The mere possession of a gun in a dwelling place, without more, is not a criminal offense. *fn2 For all they knew, at the time they entered appellant's bedroom, the officers were intervening to recover a lawfully owned, registered gun. Prior to the forcible entry and discovery of the gun, therefore, there was no probable cause to believe that Janice Washington had committed any crime.

This case, therefore is readily distinguishable from the case of Sturdivant v. United States, 551 A.2d 1338 (D.C. 1988), relied upon by the government. In that case the police had probable cause to believe that Sturdivant was the armed robber who had shot a woman law school professor in the head, and fled, together with an accomplice, With her briefcase. This court, speaking for a majority of the panel and upholding a warrantless search of the suspects' house after the suspects had been arrested, relied (understandably) not so much on the Dorman rationale of hot pursuit, as the fact that the police knew that a serious crime had been committed, that a shotgun had been used, that the shotgun had not been retrieved, and most importantly, that other members of the family who had not been arrested would still have access to the shotgun. See also Ruth v. United States, 438 A.2d 1256, 1260 (D.C. 1981). Sturdivant cannot be used for the proposition that an exigency is created by the ...


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