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07/28/92 SEWELLE H. EARLE v. UNITED STATES

July 28, 1992

SEWELLE H. EARLE, APPELLANT
v.
UNITED STATES, APPELLEE; OWEN WHITE, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Warren R. King, Trial Judge)

Before Rogers, Chief Judge, Ferren, Associate Judge, and Mack, Senior Judge. Opinion for the court by Associate Judge Ferren. Opinion Concurring in part and Dissenting in part by Senior Judge Mack.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: The grand jury charged appellants Sewelle Earle and Owen White, along with co-defendant Lattival W. McKenzie, *fn1 with possession with intent to distribute cocaine and possession with intent to distribute marijuana, D.C. Code § 33-541 (a) (1) (1988), and with unlawful possession of drug paraphernalia, D.C. Code § 33-603 (a) (1988). White filed a motion to suppress tangible evidence. After a hearing, Judge Warren King denied the motion on January 12, 1989. A joint jury trial of all three co-defendants began the same day. Both appellants moved for judgment of acquittal at the close of the government's case The trial court denied the motions. The jury convicted appellants on all three counts on January 24, 1989. Both appellants filed timely notices of appeal, which we have consolidated.

White raises four issues. First, he challenges the trial court's denial of his motion to suppress tangible evidence. He argues that the arresting officers' initial entry into his home, achieved by force at night without a warrant, violated the Fourth Amendment. White also argues that even if the initial entry was lawful, the officers' protective search of the basement area, where they found a large stash of drugs, was unlawful because the basement was a separate dwelling unit for which they had no sound basis for a warrantless entry. Second, White challenges the sufficiency of the evidence of intent to distribute. He contends that the only quantity of drugs consistent with distribution was found in the basement, not in his first floor apartment, and that there was no evidence linking him to the drugs and paraphernalia found in the basement. Third, White argues that the trial court erred in instructing the jury on aiding and abetting when there was no connection between him and the drugs in the basement. Finally, White challenges the emphasis the prosecutor placed on his prior criminal record and especially the prosecutor's reference to an unproved conviction in closing argument. We are not persuaded by appellant's contentions.

Earle appeals from the trial court's denial of his motion for judgment of acquittal, and from his conviction, on the ground that the government failed to prove that Earle constructively possessed the drugs in question or that he had the intent to distribute them. We find no error.

I. THE FACTS.

Police Officers Ronald Carroll and Michael Soulsby were partners on the midnight shift assigned to Scout Car 132 in the Fourth District of the Metropolitan Police Department. On February 20, 1988, they went to roll call at about 10:30 p.m. There they heard about a multiple homicide which had occurred a few hours earlier in an area included on their beat. Although the details were sketchy, the officers learned that the murders involved handguns and that the suspects were three Jamaican men.

About half an hour later, while on patrol, Carroll and Soulsby received a radio run informing them that someone had reported the sounds of gunshots inside a residence at 1213 Park Road, *fn2 about a block away from their location and six blocks from the earlier murders. The officers immediately responded to the call. Officer Soulsby went to the front door while Officer Carroll stood a few feet away behind a tree, watching the front windows on the porch. Although the lights were on inside the house, no one responded "for quite some time" to Soulsby's knock at the door.

After attempting to contact the police dispatcher for more information, Officer Soulsby rang the doorbell. Appellant White answered the doorbell, opening the door just enough to reveal his face and part of the right side of his body. Officer Soulsby explained that someone had reported shots fired inside the house, and asked if anyone was there with White, who replied, "No." Soulsby noticed a strong odor of marijuana. During this exchange, Officer Carroll joined his partner on the porch. He also noticed the strong marijuana odor. Aware that the suspects in the earlier murders were Jamaican males, the officers were concerned when they observed that White had his hair in dreadlocks, a style commonly associated with Jamaicans.

The officers also were anxious about the possibility that there were victims inside the residence who might need assistance. Officer Soulsby noticed that White appeared to be very nervous and was looking behind the door and making furtive movements with his left hand, which was concealed behind the door. The officer repeatedly asked White to bring his hand "out from behind the door." When he refused to show the officer his left hand, both officers were afraid that White was armed.

White attempted to close the door, but Officer Soulsby's left foot and left hand were caught between the door and the door frame. White pushed on the door from the inside while both police officers pushed from the outside in an effort to free Soulsby's foot and hand. Pushing on the door until they overcame White's resistance, the officers gained entry. While Officer Carroll held the struggling White against the wall in the foyer, attempting to frisk him for weapons, Officer Soulsby picked up a large, hand-rolled, still-smoldering marijuana "cigar" which he had seen White drop onto the floor. A third officer, Reginald Williams, entered to assist Carroll in controlling White while Soulsby began walking toward the rear of the house, looking for possible victims of a shooting.

Seeing a woman sitting on the couch in the living room, Officer Soulsby commented to White, "I thought you said no one else was in the house." Soulsby checked to make sure that no one else was in the living room and that the young woman was not armed. Officer Williams followed Officer Soulsby as he checked the first floor, searching through the dining room and into the kitchen for victims or for someone who might be armed. Hearing the footsteps of one or more persons in the basement, Officer Soulsby again was afraid that someone in the house might be armed or that the noise he heard downstairs might have come from someone who was injured. He walked carefully through the doorway, which was open, and down the stairs with his gun drawn. There were two rooms at the bottom of the stairs, one to the left and one to the right. Soulsby looked around the open doorway in the room to his right ("Room 1") to make sure that no one was hiding behind the door. Although no one appeared to be in the room, Soulsby saw a table piled with packaging materials, packages of crack cocaine, other drugs, and drug paraphernalia. Officer Soulsby did not enter Room 1 at that moment but instead called loudly for Officer Williams' assistance.

Soulsby, followed by Williams, entered the bedroom to the left ("Room 2") where they encountered appellant Earle lying face down on the bed with his arms outstretched. The light was on in Room 2 and Earle was fully dressed, including shoes and socks. Soulsby at first thought that Earle might be sleeping, but when the officers "woke him up" Earle did not appear to be startled to see them there with a weapon drawn. Together the two officers got Earle off the bed and frisked him for weapons. Earle told the officers that his name was Huntley Forbes. They took him to Room 1, where Officer Soulsby had seen the crack cocaine. Soulsby then returned to Room 2 and checked the closet. Finding no one there, he returned to Room 1, calling to Officer Carroll to bring White and the woman downstairs as a safety precaution to allow the officers to monitor everyone present.

As they were assembled, hearing a noise in what appeared to be a small closet in Room 1, Officer Williams used a pin to unlock the door to what was actually a small bathroom where co-defendant Lattival McKenzie was sitting in the dark on the closed lid of the toilet, fully dressed, wearing headphones and a portable radio. Officers Carroll and Williams brought McKenzie out of the bathroom into Room 1 with the others. Carroll frisked McKenzie and found fifteen empty "ziplock" bags in the front pocket of his jumpsuit, along with a wallet containing $1,224 in cash.

Examining the table in Room 1, the officers found loose rocks of crack cocaine, a razor blade, two large "ziplock" bags of individually wrapped rocks of crack cocaine, six bags of marijuana, a small scale, a knife, cigarette rolling papers, a cigarette lighter, a supply of empty "ziplock" bags, a cigar box containing a ten dollar bill and some change, a small police scanner radio, two "beepers" or radio pagers, and a set of nunchucks (a martial arts weapon). After field tests proved that the substances were cocaine and marijuana, the officers catalogued the evidence. *fn3

II. THE FOURTH AMENDMENT.

A.

"Searches conducted outside the judicial process, without prior approval by a Judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.'" United States v. Booth, 455 A.2d 1351, 1354 (D.C. 1983) (quoting Mincey v. Arizona, 437 U.S. 385, 390, 57 L.Ed.2d 290, 98 S.Ct. 2408 (1978) (quotation omitted); accord Katz v. United States, 389 U.S. 347, 357, 88 S.Ct 507, 514, 19 L.Ed.2d 576 (1967)). One such exception is "exigent circumstances," where "the dangers are such that entry cannot be delayed." Id. at 1354; see United States v. Minick, 455 A.2d 874, 877 (D.C.) (en banc), cert. denied, 464 U.S. 831, 78 L.Ed.2d 112, 104 S.Ct. 111 (1983) (hot pursuit of suspected armed felon); see also Warden v. Hayden, 387 U.S. 294, 298-99, 18 L.Ed.2d 782, 87 S.Ct. 1642 (1967).

We have recognized, as a subset of this exception, an "emergency" exception to the warrant requirement. See Booth, 455 A.2d at 1355. The emergency exception acknowledges the right and duty of the police to respond to emergency situations, "'recognizing that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.'" Id. (quoting Mincey, 437 U.S. at 392, 98 S.Ct. at 2413).

In Booth, a police officer received a radio report of an "assault in progress." He drove to the reported address and knocked on the front door. When appellant answered the door with dried blood on his nose, the officer, having "reason to believe that somebody in there had been injured," crossed the threshold of the front door into the hallway of the rooming house. Eventually he encountered the complainant, his face covered with blood. Id. at 1352. One of appellant's co-defendants told the officer that she had struck the complainant with a broom handle, which the officer then seized. The trial court suppressed the statement and the broom handle as fruits of an illegal entry. Booth, 455 A.2d at 1353. We held that the trial court erred when it failed to consider the emergency exception to the warrant requirement in determining whether the officer had been justified in crossing the threshold of the rooming house. Id. at 1355-56.

Three criteria must be satisfied to justify a warrantless entry under the emergency exception. (1) The police officer must have probable cause based on specific, articulable facts to believe that an immediate entry is necessary to assist someone in danger of bodily harm; (2) the entry must be carefully tailored to achieve that objective; and (3) the entry must be motivated by an intent to investigate a genuine emergency and to render assistance, not by the intent to arrest or to search. Id.

We conclude that these three criteria were met in this case. There was the required probable cause. The officers had been summoned to the home because of a report that shots had been fired in or at the rear of the house -- a strong implication of imminent danger of bodily harm. Officer Soulsby stood on the porch for "quite some time" waiting for someone to answer the door. When White did respond he behaved nervously, looked repeatedly back behind the door, and refused to show his hands. He resembled the suspects in the earlier homicides nearby. He tried to shut the door on Soulsby. Given these circumstances, the police had reason to be concerned for the safety of possible victims inside.

The second Booth requirement is also met. Although the entry must be carefully tailored to achieve only the objective of assisting someone in danger, the scope of the objective, and thus of the entry, coincided in this case with the duty to ascertain whether someone on the premises had been injured by a gun. The officers here did "no more than reasonably necessary to ascertain whether someone in need of assistance." Id. Finally, because both officers testified repeatedly that their central concern was the possible presence of injured victims in the house, the record supported a finding that the entry was motivated by an intent to investigate and respond to a genuine emergency, not to arrest or to search. Accordingly, we sustain the trial court's ruling that the requirements of the emergency exception were met and thus that the police officers lawfully entered White's home.

Once legally inside, the officers observed, in plain view, the large smoldering marijuana "cigar" that White dropped at his feet. The officers, therefore, were justified under the plain view doctrine in arresting White and seizing the cigar. See Texas v. Brown, 460 U.S. 730, 738, and n.4, 741-742, 75 L.Ed.2d 502, 103 S.Ct. 1535 (1983) (plurality opinion); cited with approval in Illinois v. Andreas, 463 U.S. 765, 771, 77 L.Ed.2d 1003, 103 S.Ct. 3319 (1983) (plain view doctrine authorizes seizure of illegal or evidentiary items visible to police whose ...


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