Appeal from the Superior Court of the District of Columbia; (Hon. Frederick H. Weisberg, Trial Judge)
Before Rogers, Chief Judge, Farrell, and King, Associate Judges. Opinion for the court by Associate Judge King. Concurring opinion by Chief Judge Rogers.
The opinion of the court was delivered by: King
KING, Associate Judge : Appellant was convicted of two counts of armed robbery, D.C. Code §§ 22-2901, -3202 (1989), and one count of possession of a firearm during a crime of violence or dangerous offense, D.C. Code § 22-3204 (b) (1989). Appellant argues on appeal that certain tangible evidence, including an imitation Uzi machine gun, should have been suppressed because it was seized during a search that violated the District of Columbia's "knock and announce" statute, D.C. Code § 23-524 (a) (1989). *fn1 In denying appellant's motion to suppress, the trial Judge found that the police action was justified by exigent circumstances. We affirm.
On November 26, 1990, at approximately 8:00 p.m., a man entered the Trak Auto store located at 318 Riggs Road, N.E., wearing a mask and carrying a Tropicana juice box. He walked to the parts counter, pulled an Uzi style machine gun *fn2 out of the box and ordered the store manager, who was servicing a customer, to open the store safe. After the manager gave the gunman $508 from the safe, another store employee was ordered to turn over $338 cash from the cash register. The assailant then backed out of the store holding the employee, as a human shield, at gunpoint. As he reached the door the gunman took off his mask, pushed the employee away, and fled the store.
Store employees identified the appellant as the gunman from a photo array. It was then ascertained that the appellant resided at 611 Keefer Place, N.W. In addition, the police learned from an informant, who had personally observed the weapon, that the Uzi was present inside of the premises within the 24 hours preceding the search warrant application and that appellant had spoken of "doing a robbery." Finally, appellant fit the description of the perpetrator of approximately eleven other robberies, all within the six weeks preceding the search, involving the use of an automatic weapon similar to the one used in the Trak Auto robbery. *fn3 Based on this information, the police requested a search warrant for the Keefer Place premises. Because of the nature of the weapon, and its repeated recent use by appellant, a nighttime warrant was sought and approved by the authorizing Judge, because it was believed that, under the circumstances, a search at night would be less dangerous.
The Special Operations Division's Emergency Response Team ("ERT") was requested to execute the warrant based on the potential for violence. When the ERT arrived at the appellant's residence at 8:00 p.m. on December 4, 1990, approximately eight days after the Trak Auto robbery, they saw lights and heard voices coming from inside the home. Officer Grooms knocked on the door three times with his shield and announced, "Police, search warrant." The talking stopped and thereafter there was no acknowledgment of the knock, sound of movement toward the door, or scuffling inside the home. After five seconds the police used a battering ram to force open the door. The police waited only five seconds because they feared that "any other delay would have possibly allowed someone inside to arm themself with this weapon." The officers arrested the appellant and discovered an imitation Uzi machine gun in the rafters of the basement ceiling where the informant had reported seeing it. *fn4
Prior to trial, appellant, moving to suppress tangible evidence seized from the house in which he was arrested, challenged the search on three separate grounds: (1) that the search warrant was not supported by probable cause, (2) that the warrant was executed at nighttime but did not comply with the requirements of a nighttime search warrant, and (3) that the officers violated the knock and announce requirements of the D.C. Code. The motions Judge rejected each claim and denied the motion. The Judge found that exigent circumstances justified the forced entry after the passage of only five seconds because the nature of the weapon posed "a serious risk of injury to the police or other citizens . . . ."
On appeal, the only claim presented is that the motions Judge erred in concluding that the officers' entrance did not violate the knock and announce requirements.
It is well established that the "police may not forcibly enter a person's house without prior announcement." Williams v. United States, 576 A.2d 700, 703 (D.C. 1990) (citing Miller v. United States, 357 U.S. 301, 306-08, 2 L. Ed. 2d 1332, 78 S. Ct. 1190 (1958) ("From the earliest days, the common law drastically limited the authority of law officers to break the door of a house to effect an arrest.")). When executing a search warrant at a residence, the police must knock and notify the occupants of the police authority to search the home, D.C. Code § 23-524 (a) (incorporating 18 U.S.C. § 3109). This court's interpretation of the knock and announce provision in § 33-565 (g), which is virtually identical to its federal counterpart, 18 U.S.C. § 3109, and federal circuit courts interpreting that provision, have recognized two broad exceptions to the knock and announce requirement. The first exception allows police to enter without delay if the police can reasonably infer from the actions or inactions of the occupants that they have been refused admittance. *fn5 United States v. Covington, 385 A.2d 164, 168 (D.C. 1978). The second exception allows police to enter if they are confronted with exigent circumstances, such as the imminent destruction of evidence or danger to the entering officer. Williams v. United States, supra, 576 A.2d at 703.
Our review of appellant's challenge to the trial court's determination that exigent circumstances justified the police intrusion must afford the government "all legitimate inferences from the testimony and uncontroverted facts of record," United States v. Covington, supra, 385 A.2d at 166 (quoting Jenkins v. United States, 284 A.2d 460, 462 (D.C. 1971)), if those inferences are "supportable under any reasonable view of the evidence." Ibid. (quoting Scarbeck v. United States, 115 U.S. App. D.C. 135, 155, 317 F.2d 546, 562, cert. denied, 374 U.S. 856, 10 L. Ed. 2d 1077, 83 S. Ct. 1897 (1963)).
In the present case, the issue before the motions Judge in determining exigency was whether the evidence satisfied an "objective test . . . which calls for a . . . judicial evaluation whether those circumstances support a legal Conclusion of . . . exigent circumstances . . . ." United States v. Bonner, 277 U.S. App. D.C. 271, 278, 874 F.2d 822, 829 (1989). The test is how a reasonable and experienced officer would respond under these circumstances. See Williams v. United States, supra, 576 A.2d at 704 (citing United States v. Bonner, 277 U.S. App. D.C. at 278, 874 F.2d at 829). Applying these principles, the trial Judge found that:
these officers were acting reasonably in concluding after a very short passage of time that there was an exigent need to enter those premises by force immediately in order to avoid . . . what was believed to be a serious risk of injury to ...