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UNITED STATES v. MORGAN

March 19, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
ADAMS MORGAN, a.k.a. Morgan Adams, a.k.a. Claremont McKenzie, a.k.a. Mark Warthon, Defendant


June L. Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JUNE L. GREEN, UNITED STATES DISTRICT JUDGE

 These matters are before the Court on defendant Claremont McKenzie's *fn1" Motion to Suppress Tangible Evidence, Motion for Severance of Offenses, Motion to Strike Surplusage, and Motion in Limine. The government opposes each of these motions. For the reasons set forth below, the Court denies the defendant's motion to suppress; grants the defendant's motion in limine ; grants, in part, the defendant's motion for severance; and grants, in part, the defendant's motion to strike surplusage.

 Facts

 This Court heard evidence on the defendant's motions on March 12, 1990. At the motions hearing, Officer Carter Adams testified on behalf of the government that he and other officers responded to a radio run for a burglary in progress at 3700 9th Street, S.E., Apartment 721, Washington, D.C. Officer Adams testified that he, Officer Seth Holmes and Officer Raymond Mead proceeded on the elevator to the seventh floor where apartment 721 was located. When the elevator doors opened, the officers observed two individuals in the hallway, near apartment 721. Officer Adams testified they saw one man tampering with the door handle of apartment 721. The defendant, he testified, was standing a few feet away from the other man.

 The officers approached both men and attempted to investigate the situation. Officer Seth Holmes testified that he told the unidentified man to step away from the door. According to the officers, the defendant then turned and fled down the hallway. Officer Raymond Mead and Officer Adams pursued the defendant.

 Officer Adams, who was leading the chase, stated that as he was running, the defendant reached into his waistband and attempted to pull out a handgun. However, the gun fell from his grasp onto the floor, where it later was retrieved by Officer Adams.

 The defendant continued to flee from the officers. According to Officer Adams, he ran into the stairwell and up to the eighth floor. Officer Adams testified that halfway down the eighth floor hallway, the defendant ducked into an alcove and removed his leather jacket. Officer Adams stated that he and Officer Mead seized and arrested the defendant on the eighth floor, and recovered his jacket. Officer Adams then returned to the seventh floor to retrieve the gun dropped by the defendant.

 According to the officers, a search of the defendant and his jacket, recovered approximately twenty-four rocks of crack cocaine from one of the jacket's inside pockets.

 The defendant also testified at the motions hearing. He stated that on the night in question, he was at 3700 9th Street, S.E. in an apartment where he formerly resided. He stated that he went downstairs to apartment 720 to visit a man named "Johnny". According to defense witnesses, apartment 720 and apartment 721 are adjacent apartments, separated by approximately 35 feet. The defendant testified that he spoke to the owner of apartment 720 and discovered that Johnny was not in. As he stepped out of the doorway of apartment 720, the defendant testified that he saw the police officers approaching the unidentified man in front of apartment 721. He stated that he turned and started to walk away when one officer shouted at him. He said that he could see over his shoulder one of the officers pushing the unidentified man against the wall and placing handcuffs on him.

 The defendant stated that he got scared and started to run. Two officers, he testified, pursued him to the eighth floor where they seized him, beat him and placed him under arrest.

 On March 13, 1990 the defendant submitted a Motion to Reopen Hearing on the Motion to Suppress Tangible Evidence on the basis that new evidence should be presented to the Court. In the motion to reopen, the defendant alleged that after the March 12, 1990 motions hearing defendant's counsel was allowed, apparently for the first time, to listen to a tape recording of the radio run involved in this case. The defendant further alleged that the tape recording which his counsel listened to contained no report of a burglary in progress at 3700 9th Street, S.E., Apartment 721, Washington, D.C. Instead, the tape revealed a 911 call describing a domestic disturbance at apartment 721, followed by a radio run for a domestic dispute between a girlfriend and her boyfriend at that location. The defense argued that the tape eliminated any basis the police might have had for stopping the defendant outside the apartment.

 The Court granted the defendant's motion to reopen. A hearing was held on March 14, 1990. The Court listened to a series of tape recordings involving the incident leading to the defendant's arrest. The tapes recorded three 911 calls, two from the female occupant of apartment 721 reporting that a man was trying to break into her apartment, and one from a security guard in the apartment building reporting a woman in apartment 721 being harassed. The tapes also recorded two radio runs broadcast to police units. The first radio run informed the officers of a boyfriend/girlfriend dispute at apartment 721, but told the officers to standby. In the second radio run, the dispatcher stated that the boyfriend/girlfriend dispute had been reclassified to a burglary I in progress.

 After listening to the recordings, this Court ruled orally on the defendant's motions. The Court denied the motion to suppress, and granted, in part, both the defendant's motion to sever offenses and the defendant's motion to strike surplusage. The Court also granted a motion in limine to exclude a statement by the defendant, which defense counsel submitted to the Court at the reopened hearing. ...


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