The opinion of the court was delivered by: AUBREY E. ROBINSON, JR.
On October 4, 1991 at approximately 1:00 p.m. Defendant Henry exited apartment B-34 and entered the hallway of the apartment building at 134 - 42nd Street, N.E. The United States Marshal Service was surveilling this apartment pursuant to information from a confidential informant that Henry was inside. Henry was wanted by the police on a parole violation warrant. Marshal Sloane was hiding behind a staircase in the hallway outside of Henry's apartment. When Henry entered the hallway for a second time, Marshal Sloane exited from behind the staircase, pointed his gun at Henry and told Henry to freeze and that he was under arrest. Henry froze and put his arms in the air. Several Marshals and police officers approached the apartment building door which was locked. Still holding the gun on Henry, Sloane backed up and opened the door for the officers. The officers quickly entered the building and tackled Henry to the ground, placing handcuffs on him and patting him down for weapons. Within minutes of the arrest, the officers entered apartment B-34. Several of the government's witnesses testified that Defendant Henry asked the officers to allow him to enter the apartment in order to change his clothes before being taken to the police station. The Court hereby finds this testimony of doubtful credibility. Nonetheless, for reasons stated below, the officers were justified in entering the apartment in order to conduct a protective sweep of the apartment. In the bedroom of the apartment the officers found in plain view a .38 calibre revolver, marijuana, and a plastic bag containing heroin. Meanwhile, Henry was being held in the living room.
After bringing Henry into the apartment, the officers attempted to read him his rights. Henry interrupted the officers and told him he knew what his rights were. Henry ultimately signed a PD 47 form stating that his rights were read to him and he did not wish to waive them. The form stated that he was not willing to answer questions without an attorney.
Before and subsequent to invoking his rights, Henry made statements that he would "take the weight for this" and that everything in the apartment belonged to him.
Henry remained under arrest in the apartment for approximately six hours. At approximately 7:00 p.m. he was taken to the police station. Henry was ultimately indicted on the charges of possession with intent to distribute heroin, use of a firearm in a drug trafficking offense, and possession of a firearm by one previously convicted of a felony.
B. JAMES HAMILTON'S ARREST
James Hamilton drove up to 134 - 42nd Street, N.E. in a cab at approximately 1:00 p.m. on October 4, 1991. He exited the cab and, with assistance from the cab driver, carried four bags containing his personal possessions up to the apartment building. Through the window in the door of the building Hamilton saw Henry inside the building being arrested by Marshal Sloane. Henry apparently mouthed to Hamilton "they got me." As Hamilton walked back towards the cab, two police officers drove passed him. In the car Marshal Nobles told Officer Robinson, without any explanation, to stop Hamilton. Officer Robinson stopped Hamilton and requested some identification. Robinson also requested identification from the cab driver and made a note of the cab driver's name and address.
The information obtained from the cab driver was never made available to defense counsel.
At the same time Robinson stopped Hamilton, Marshal Nobles entered apartment B-34. A few minutes passed and Nobles returned from the apartment and approached Hamilton. Robinson told Nobles that Hamilton had produced identification stating that he was James Hamilton. Nobles responded that Hamilton resembled a fugitive named Thomas Farmer. Hamilton was arrested and placed in handcuffs and his rights were read to him. Robinson reached into Hamilton's his pocket and gave the cab driver $ 10. The cab driver left the scene. Hamilton was taken into the apartment.
After being held in the apartment for approximately one hour Hamilton signed a "Consent to Search" form to sign and a PD 47 form. Approximately four hours after Hamilton entered the apartment the police brought his four bags of personal belongings in from outside. There is conflicting testimony as to whether Hamilton consented to a search of his bags. It is undisputed that Hamilton gave no written consent to search the bags. Nonetheless, the bags were searched and heroin and other contraband was found. Hamilton was ultimately indicted on the following charges: possession with intent to distribute heroin, use of a firearm in a drug trafficking offense, and possession of a firearm by one previously convicted of a felony.
At approximately 7:00 p.m. Henry and Hamilton were taken to the ...