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12/18/92 BILL J. GRIFFIN v. UNITED STATES

December 18, 1992

BILL J. GRIFFIN, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. A. Franklin Burgess, Jr., Trial Judge)

Before Rogers, Chief Judge, and Terry and Schwelb, Associate Judges. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Associate Judge Terry.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: As a great British prime minister is said to have put it more than two and one quarter centuries ago,

every man's house his castle *fn1 . . . .The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement!

Miller v. United States, 357 U.S. 301, 307, 2 L. Ed. 2d 1332, 78 S. Ct. 1190 & n.7 (1958) (quoting William Pitt, the Earl of Chatham). Even where police officers are armed with a search warrant and looking for drugs, they may not forcibly enter a residence unless they have first given notice of their presence and purpose and have then been refused admittance. D.C. Code § 33-565 (g) (1988).

In the present case, using a battering ram, officers who were executing a search warrant broke down the door of appellant Bill Griffin's mother's apartment at 1:40 a.m., approximately thirty seconds after they "knocked and announced." They found "crack" cocaine and money. Griffin, a high school student, was arrested and charged with misdemeanor possession of a controlled substance. D.C. Code § 33-541 (d) (1988).

Before trial, Griffin moved to suppress the tangible evidence obtained by the police following their forced entry. The trial Judge denied the motion, and Griffin was thereafter convicted by a jury. He now appeals, contending that the evidence ought to have been suppressed. We hold that the government failed to prove that the officers had been "refused admittance" after they had given the required notice, and therefore that the evidence was unlawfully seized. Accordingly, we reverse Griffin's conviction and remand the case with directions to grant his motion to suppress.

I

THE FACTS

There were two witnesses at the suppression hearing. Officer Curt Sloan of the Metropolitan police Department testified for the prosecution. Bill Griffin's sixteen-year-old brother, Christopher, testified for the defense.

According to Officer Sloan, the police had obtained a search warrant for the apartment in question, which is located in southeast Washington, D.C., after a controlled drug purchase had been made there by a "special employee" one evening, before midnight, some nine to thirteen days earlier. Sloan and the other officers approached the side door of the apartment, where the previous drug buy had allegedly occurred. This door had no windows. *fn2 Officer Sloan knocked loudly and announced, "Police, I have a search warrant, open up." Ten seconds later, no response having been obtained, Sloan knocked and identified himself once again. After an additional period passed without any response, Officer Sloan stepped aside so that the "ram team get in a position to open the door forcibly with a ram." The "ram team" then broke open the door. Approximately thirty seconds had elapsed between Officer Sloan's initial knock on the door and the ram-enhanced entry into the apartment.

Inside the apartment, the officers found Bill Griffin lying on a sofa in the living room. *fn3 On a coffee table next to the sofa lay a plastic ziplock bag containing "a white rock substance," which turned out to be crack cocaine. Bill Griffin had $150.00 on his person, and more packages of cocaine and money were recovered elsewhere in the apartment. The officers placed Bill Griffin under arrest and seized the plastic bag and its contents.

Christopher Griffin testified that on the night in question, he was in his bedroom, *fn4 getting ready to go to bed. He heard loud banging on the door. There were two knocks, and Christopher stated that they came "right behind each other." He did not hear any voices, and did not know that the police were at the door. Suspecting that someone was attempting to break into the house, Christopher grabbed a bat from under one of the two beds in the bedroom and headed towards the dining room. He heard his brother, Bill Griffin, answer the door, and say "who is it?" *fn5 Immediately thereafter, Christopher heard a loud crash as the door smashed open and swung into the radiator in the kitchen. By the time Christopher reached the dining room, the police were already in the kitchen. They ordered his brother to "freeze" and had him leaning over the stove against the wall.

After hearing extensive argument, the trial Judge denied Griffin's motion to suppress. He found both witnesses credible, *fn6 but accepted Officer Sloan's testimony, apparently finding parts of Christopher's description of the sequence of events less plausible; the Judge also thought that Christopher had a greater stake in the outcome than Officer Sloan did. The Judge found, in conformity with the officer's testimony, that about thirty seconds elapsed between Officer Sloan's initial announcement and the demise of the door. Correctly noting that, under the applicable case law, a refusal of admittance need not be explicit, the Judge concluded that the officers had waited a reasonable time before resorting to the battering ram:

The obvious point is there is no fixed time. We're talking about what's reasonable and that . . . at least in my judgment, does allow a sort of a zone for the officers to operate. While I might not make the same decision, they're allowed to make a decision against mine. While I may disagree on how long it takes people to get and come down, they're allowed to disagree with me and take a shorter period of time.

They're not at the low extreme of four seconds, but they're in a certain zone of reasonableness.

In this case we have the fact that drugs had been sold recently, up around midnight, which is not far away from this time. We have evidence that a police officer knocked not once, but twice, in a loud manner. We have evidence that there was a black heavy material over the windows, which would suggest closing people out, and keeping people from seeing light if it was on in there, seeing what was going on inside.

And, we have evidence . . . of the wait of thirty seconds. I think that all of this, together with the fact that the police were making an entry for drugs, can be considered, and I think the entry ought to be sustained.

II

THE STANDARD OF REVIEW

Before reaching the substantive legal questions presented by this appeal, we must identify the correct standard of review. The basic principles are straightforward and familiar, but we have never heretofore applied them to the issue here presented.

The trial Judge's findings of "basic, primary, or historical facts -- facts in the sense of a recital of external events and the credibility of their narrators," Townsend v. Sain, 372 U.S. 293, 309, 9 L. Ed. 2d 770, 83 S. Ct. 745 n.6 (1963) -- are reviewed deferentially under the "clearly erroneous" standard. D.C. Code § 17-305 (a) (1989); Lawrence v. United States, 566 A.2d 57, 60 (D.C. 1989); United States v. McConney,, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 83 L. Ed. 2d 46, 105 S. Ct. 101 (1984). We must also accept the inferences drawn by the trial Judge as to the facts before him, so long as those inferences are supportable under any reasonable view of the evidence. See, e.g., Williams v. United States, 576 A.2d 700, 703 (D.C. 1990).

The trial court's legal Conclusions, on the other hand, are reviewed under the non-deferential de novo standard. Guadalupe v. United States, 585 A.2d 1348, 1352 n.7 (D.C. 1991); United States v. Felder, 548 A.2d 57, 61 (D.C. 1988). " De novo review of questions of law . . . serves to minimize judicial error by assigning to the court best positioned to decide the issue the primary responsibility for doing so." McConney, supra, 728 F.2d at 1201. In the words of Chief Judge Coffin,

every important appellate court decision is made by a group of equals. This fact reflects the shrewd judgment of the architects of our state and federal judicial systems that an appellate Judge is no wiser than a trial Judge. The appellate court's only claim to superior judgment lies in numbers; three, five, seven or nine heads are usually better than one.

FRANK COFFIN, THE WAYS OF A JUDGE, 58 (1980) (quoted in McConney, supra, 728 F.2d at 1201 n.8).

In the present case, we must decide whether the officers had been "refused admittance" to Griffin's mother's apartment, within the meaning of § 33-565 (g), when they broke down the door with a battering ram. This is a "mixed" question of law and fact, see McConney, supra, 728 F.2d at 1205, and thus represents the most troublesome kind of inquiry for standard of review purposes. Id. at 1200. In determining what deference, if any, should be accorded to a trial court's resolution of such a mixed question, we consider, among other things the whether the issue to be decided more closely resembles one of fact or of law, and whether the trial court or the appellate court is in a position to render the decision with the higher degree of accuracy. Felder, supra, 548 A.2d at 61-63.

The decision whether the officers were refused admittance -- whether, Judged by an objective standard, *fn7 the lack of any response thirty seconds after the first knock constituted a constructive refusal on the part of the occupants to admit the police -- necessarily goes well beyond an inquiry into the historical facts. The balance we strike between the competing interests will not only have consequences for the parties here, but will also provide legal precedent affecting the rights of future litigants. This is a ...


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