(D.C. Cir. 1987) (warrant describing a "Blazer" vehicle, without containing the number of the license plate, was sufficiently particular when the color, owner and likely location were identified).
The Defendants also contend that the Superior Court Judge did not have a sufficient basis upon which to find probable cause for the issuance of the warrant. Specifically, the Defendants complain that the warrant and the accompanying affidavit do not provide a sufficient basis upon which the Superior Court Judge could determine the reliability of the information provided by the confidential informant. This contention also lacks merit. The warrant and accompanying affidavit explain that the confidential informant is a source of well-known reliability to the police department. Moreover, the informant participated in a controlled buy at the premises prior to the execution of the warrant under the supervision of the police. Although the officer supervising the controlled buy, Kevin Copeland, did not testify at the Hearing before this Court, this is not dispositive. The question before this Court is whether, based on the record before the Superior Court Judge, the Judge had a sufficient basis upon which to issue the warrant. Clearly, the facts alleged in the warrant and the accompanying affidavit provided the Judge with a sufficient basis to find probable cause. In fact, United States v. Allen, No. 91-3206 slip op. at 3-4 (D.C. Cir., Apr. 7, 1992), addresses this question in a factual scenario very similar to the instant case. As in the Allen case, a single purchase by a confidential informant within 72 hours of the issuance of the warrant does furnish the Judge with a sufficient basis for probable cause determination. See generally United States v. Ventresca, 380 U.S. 102, 108, 13 L. Ed. 2d 684 , 85 S. Ct. 741 , 16 A.F.T.R.2d (P-H) 5787 (1965) (courts should adopt a common sense standard and when a doubt exists, should resolve dispute in favor of the Magistrate's determination). Finally, even assuming arguendo that the warrant did not contain sufficient indicia to establish probable cause, the Defendants do not persuasively dispute the Government's contention that the officers executing the warrant relied upon the warrant in good faith. United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677 , 104 S. Ct. 3405 (1984).
The Defendants also seek to suppress the evidence due to the police officers' failure to comply with 18 U.S.C. § 3109, the knock-and-announce statute.
Because the Court finds the testimony of the Government's witness, Sergeant Sledge, far more credible than the testimony of Ms. Lewis in this regard, the Court shall deny the Defendants' Motion to Suppress for failure to knock and announce. Ms. Lewis, as the mother of two of the Defendants, clearly has a vested interest in testifying in favor of the Defendants' position. Moreover, the cross examination at the April 16, 1992 Hearing established a sufficient basis upon which to question Ms. Lewis' ability and opportunity to observe and to hear the events transpiring upon the execution of the warrant. At the time of the incident, Ms. Lewis was inside of her bedroom with the door closed and the television turned on. She was tired and was taking various medications. Sergeant Sledge, on the other hand, has vast experience in executing search warrants, had an clear opportunity to observe all relevant events and has no particular motive to shade his testimony.
Sergeant Sledge's testimony demonstrates the officers' compliance with the knock and announce statute. The testimony illustrates that the officers did announce themselves and their intention to execute the warrant. The evidence also indicates that Sergeant Sledge and his team waited at least nine (9) seconds before ordering the use of the battering ram. Given Sergeant Sledge's repeated knocking and announcing, the length of time that had elapsed, the warning yell from a woman inside of the house and the sounds of footsteps running away from the door,
the Court finds that the officers were refused admittance and had a valid basis upon which to gain entry by force. See United States v. Bonner, 277 App. D.C. 271, 874 F.2d 822, 824 (D.C. Cir. 1989) (citations omitted); United States v. Wood, 279 App. D.C. 81, 879 F.2d 927, 932-33 (D.C. Cir. 1989).
Defendants Parker, Linwood Lewis and Zeb Murray claim that a severance is warranted in light of an alleged disparity of evidence supporting the charges against the various Defendants. According to these Defendants, a joint trial would be prejudicial due to the likelihood that the overlapping charges would confuse the jury. Defendants also claim that there is a possibility that a Bruton problem might arise if separate trials are not conducted. Upon consideration of the claims, the Court must deny the Defendants' Motion for a Severance.
In evaluating requests for severance, courts usually strike the balance in favor of joint trials. See United States v. Gibbs, 284 App. D.C. 232, 904 F.2d 52, 56 (D.C. Cir. 1990); United States v. Manner, 281 App. D.C. 89, 887 F.2d 317, 324 (D.C. Cir. 1989), cert. denied, 493 U.S. 1062, 110 S. Ct. 879, 107 L. Ed. 2d 962 (1990). Given the factual circumstances in this case, the Government is likely to present the same evidence and the same witnesses in support of the drug charges against each of the Defendants. Moreover, in this case, the evidence is not so disparate that any of the Defendants would be prejudiced merely by association in the same courtroom. See United States v. Bruner, 212 App. D.C. 36, 657 F.2d 1278 (D.C. Cir. 1981) (must be a "dramatic" difference in the evidence such that a joint trial would be "far more damaging" to one Defendant). All of the Defendants are charged with drug offenses, and the Government must prove that each Defendant possessed the drugs and had the requisite intent to distribute them. The fact that two of the Defendants, Steven Parker and Christopher Lewis, are also charged with violations of the firearm laws does not, in itself, unfairly prejudice the remaining Defendants. The Court's jury instructions could cure any potential confusion. It is not "unreasonable to expect a jury to compartmentalize the evidence [against each defendant]." Gibbs, 904 F.2d at 56; see Manner, 887 F.2d at 324 ("jury instructions are usually sufficient to minimize any disparities in evidence"). In short, Rule 14 does not require a severance "merely because a Defendant 'might have a better chance of acquittal if tried separately.'" United States v. Wright, 251 App. D.C. 276, 783 F.2d 1091, 1095 (D.C. Cir. 1986) (quoting United States v. Wilson, 140 App. D.C. 220, 434 F.2d 494, 501 (D.C. Cir. 1970)).
Defendants Linwood Lewis, Zeb Murray and Steven Parker also seek disclosure of the name, address and history of government cooperation of any confidential informants or unindicted co-conspirators. The Court shall deny this Motion. Under Roviaro v. United States, 353 U.S. 53, 59-62, 1 L. Ed. 2d 639 , 77 S. Ct. 623 (1957), the Court must balance the Defendant's need for disclosure to ensure a fair trial with the public's interest in preserving the informant's anonymity and encouraging citizens to report crimes. As the Government points out, the Defendants do not (and cannot) allege that the confidential informant is essential to their defense. The informant played no role in the execution of the search warrant, which, in turn, led to the arrest. See United States v. Freeman, 816 F.2d 558, 562-63 (10th Cir. 1987) (no disclosure required when informant not participant in transaction leading to defendant's arrest and defendant failed to establish relevance); United States v. Burrell, 720 F.2d 1488, 1494 n.8 (10th Cir. 1983) (no duty to disclose when informant neither participant in, nor witness to, crime).
Finally, the Defendants ask the Government to provide notice of its intention to use Rule 404(b) evidence. Defendants also ask the Government to turn over all exculpatory evidence. At the April 16, 1992 Hearing, the Government represented that it has no intention to use Rule 404(b) evidence. Moreover, the Government also represented that it is not aware of any exculpatory evidence at this time. Thus, the Defendants' Motion for the release of any exculpatory or Rule 404(b) evidence is moot. However the Government remains obligated to advise the Defendants if and when it ascertains that such evidence will be offered at trial.
Accordingly, it is, by this Court, this 21 day of April, 1992,
ORDERED that, for the reasons expressed in the foregoing Memorandum Opinion, the Motions of Defendants Linwood Lewis, Christopher Lewis and Steven Parker to Suppress Physical Evidence shall be, and hereby are, DENIED; and it is
FURTHER ORDERED that the Motions of the Defendants Steven Parker, Zeb Murray and Linwood Lewis to Sever shall be, and hereby are, DENIED, as the interests of judicial economy outweigh any need for separate trials in the above-captioned case; and it is
FURTHER ORDERED that the Motions for Disclosure of Confidential Informant by Defendants Linwood Lewis, Zeb Murray and Steven Parker shall be, and hereby are, DENIED as the Defendants have not shown that revealing the identity of the informant is critical to the defense; and it is
FURTHER ORDERED that the Defendants' Motions for Production of Exculpatory Evidence and Rule 404(b) Evidence shall be, and hereby are, deemed MOOT, given the Government's representation at the Hearing that any such evidence shall be produced, if and when it becomes available.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE