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July 29, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Herbert B. Dixon, Jr., Motions Judge)

Before Ferren, Steadman, and Farrell, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: In this expedited interlocutory government appeal, we review a trial court order suppressing evidence that police discovered on the defendant's person and in his bedroom after they had entered his home, without a warrant, to arrest him for murder. *fn1 Because we believe that the police were acting under exigent circumstances, including a serious danger that the defendant would attack again if not apprehended as quickly as possible, we conclude that the warrantless entry to arrest him was lawful. Consequently, the ammunition clip that police found when they searched the defendant, incident to that arrest, was lawfully obtained. Furthermore, we conclude under Maryland v. Buie, 494 U.S. 325, 108 L. Ed. 2d 276, 110 S. Ct. 1093 (1990), that the police were entitled to make a cursory search of defendant's bedroom as part of a limited protective sweep incident to defendant's arrest. Because the police found the remaining evidence at issue -- two bins and a second ammunition clip -- in plain view during this lawful search, we conclude that this evidence was also lawfully seized. Accordingly, we reverse the motions Judge's suppression order and remand this case for further proceedings.


On the basis of evidence linking the defendant-appellee, Mark B. Harris, with a random shooting, a grand jury charged Harris with the following offenses: first-degree, premeditated murder while armed, D.C. Code §§ 22-2401, -3202 (1989 Repl. & 1992 Supp.); assault with a dangerous weapon, D.C. Code § 22-502 (1989 Repl.); possession of a firearm during a crime of violence, D.C. Code § 22-3204 (b) (1992 Supp.); two counts of destruction of property D.C. Code § 22-403 (1989 Repl.), carrying a pistol without a license (D.C. Code § 22-3204 (a) (1992 Supp.); possession of an unregistered firearm, D.C. Code § 6-2311 (a) (1989 Repl.); and possession of unregistered ammunition, D.C. Code § 6-2361 (3) (1989 Repl.). Before trial, Harris moved to suppress physical evidence, including the 9-mm pistol believed to he the murder weapon, which the police seized in Harris's apartment incident to his arrest.

At the January 4, 1993, hearing on this motion, Detective Jerome Sitek testified that on November 15, 1991, he had been called to investigate a homicide at 1319 Park Road, N.W. He arrived on the scene at about 6:30 or 6:35 p.m. and remained there for approximately one hour to one hour and fifteen minutes. According to Detective Sitek, witnesses at the scene said that at about 6:15 p.m. a man had accused people on the block of stealing his bicycle and had threatened to "shoot up all of Park Road" until he got the bicycle back. The man brandished what witnesses believed to be a 9-mm handgun and then began to fire randomly into passing vehicles on Park Road. Next, he walked over to Rene Best, who was seated on the front step of 1319 Park Road, and fired two rounds at Best, striking and killing him. This was an unusual shooting, Sitek said, because Best "offered no resistance"; Best "was a neighborhood alcoholic who bothered absolutely nobody and could not flee the scene that day because he was intoxicated and may have been passed out from his intoxicated level." After the shooting, the shooter continued to make threats as he left the scene, heading south on 13th Street, N.W.

Two of the witnesses identified the shooter as "Mario." Eventually, that same evening, Detective Sitek learned that "Mario" might possibly be the defendant, Mark Harris, although Sitek was unable to say how he came by this information. Sitek did not believe that this information was sufficient to justify Harris's arrest. Later that evening, however, police were contacted by another witness who had been standing next to Best when Best had been shot, and Sitek arranged to meet this witness. Sometime between 2:45 a.m. and 3:00 a.m. on the morning of November 16, 1991, this witness picked out Harris's photo from a nine-photo array and positively identified him as the shooter. At that point, Sitek believed he had probable cause to arrest Harris.

Sitek obtained Harris's address -- 1372 Kenyon Street, N.W. -- from the police computer. Sitek then decided to go directly to 1372 Kenyon Street to arrest Harris, without first obtaining a warrant. Although Sitek could not be sure that Harris would be at home, Sitek thought that he might find Harris there at that time of the morning. Sitek testified that he did not take the time to seek a warrant, which could have taken between one and three hours to accomplish, because he felt that it was important to apprehend Harris as soon as possible. In particular, Sitek cited the violence of the crime, the witness's positive identification of Harris as the shooter, the fact that the shooting had been unprovoked, the shooter's general threats against the Park Road residents, and his belief that Harris was still armed and in the area, as contributing factors in this decision.

It took Sitek until 3:30 or 3:45 a.m. to assemble an arrest team of ten to twelve police officers. The team arrived at 1372 Kenyon at about 3:50 or 3:55 a.m. Some of the officers went to the back of the building to guard the rear window of Harris's apartment. According to Sitek, the remaining officers proceeded to the locked front door of the building, buzzed someone to gain entry, identified themselves as police officers, and were admitted. *fn2 They then went to Harris's apartment, number 101, and knocked. Harris's mother opened the door. The officers identified themselves and asked to speak with Harris. Harris's mother answered that he was in back, in his room; she pointed to the rear of the apartment. The officers then entered the apartment and walked down an L-shaped hallway toward Harris's bedroom. Partway down the hall, they encountered Harris as he was leaving his bedroom. Sitek announced, "We're police officers, freeze," and pointed his weapon at Harris. The officers then arrested Harris.

Thereafter, Sitek and another officer, Officer Bailey, went into Harris's bedroom to make sure that no one else was there. Sitek admitted that he did not have any information indicating that there might be anyone else in that bedroom who might pose a danger to the police. Nevertheless, the police decided to "check out" the bedroom for their own safety. In order to do so, Sitek said, the police actually had to enter the bedroom, because it contained a blind corner and a closet. Once inside the bedroom, Sitek saw an ammunition clip on a bookshelf. When Sitek went to the far side of the bed to make sure that no one was hiding between the bed and the wall, he also noticed a weapon next to the bed. Sitek did not remove these items; instead, Sitek left an officer posted to secure the room, while he went to obtain an emergency search warrant. While Sitek was preparing the warrant papers, however, he received a call informing him that Harris had consented to a search.

Officer Gregory Bailey and Lieutenant Philip Michaels essentially corroborated Sitek's testimony concerning the events at Harris's apartment. Bailey testified that he had heard a "thump" coming from the bedroom, which he believed might be the sound of Harris dropping a gun on the floor, just before Harris emerged from the bedroom. Bailey told Harris to come out, and Harris did so. Bailey then had Harris put his hands on the hallway wall. Bailey quickly frisked Harris and felt what he thought was a pistol magazine in Harris's pocket. After telling Lieutenant Michaels about the magazine, Bailey turned Harris over to Michaels. Bailey then went into Harris's bedroom, turned on the light, and searched the bedroom to make sure no one else was in there. Inside the bedroom, Bailey saw an ammunition clip on the shelves and two weapons in plain view between the bed and the wall next to the bed, a 9-mm pistol and a "Tec-9" semiautomatic pistol. Shortly thereafter, Detective Sitek entered.

Lieutenant Michaels testified that another officer had found an ammunition magazine in the defendant's pocket while the two were patting Harris down in the hall outside of the bedroom. Lieutenant Michaels handcuffed Harris and then, within about a minute, escorted him outside the apartment into the building's hallway. There, apparently after the initial sweep of Harris's bedroom had already taken place, Michaels obtained Harris's consent to search the apartment. The government introduced a preprinted form, signed by Harris and countersigned by Michaels, which informed Harris of his right to withhold consent to a search and authorized police to search the entire apartment. According to Michaels, Harris signed the form a little after 4:00 a.m.

Dovie Dozier, Harris's mother, testified for the defense. She said that at about 4:00 a.m. she heard a knock on the door and the announcement "Police. Open up." When she did so, she saw the police with guns pointing at the door. She admitted that she had not sought to refuse police entry and that she had told them that Harris was inside. She testified, however, that the police never requested permission to enter or search the apartment and that she had never voluntarily granted consent to the entry or search.

Harris himself testified that he had been awakened by the knock at the door. He heard his mother say the police were at the door, so he got up and left his room to investigate. He met the police in the hall leading to his bedroom. Harris further testified that a police officer who said he had found a clip in Harris's pocket struck Harris on the head with it. Harris also testified that he had signed the consent form because the police had told him they had already found what they had come looking for.

Harris's sister, Brenda Harris, also testified. She said that she had seen the search of her brother's room, that her brother's bed was located "against the wall," and that she had seen a detective reach behind her brother's bed to retrieve a gun.

At the Conclusion of the hearing, the motions Judge ordered suppression of all evidence obtained from Harris's apartment, including evidence seized from Harris's person as well as from his bedroom. The Judge concluded that the officers had probable cause to arrest Harris. *fn3 Because the police did not seek a warrant, however, the Judge determined that their entry both into the common hallway of the apartment building *fn4 and then into Harris's apartment was presumptively illegal unless permitted by consent or justified by exigent circumstances. With regard to the consent issue, the Judge concluded that: (1) because of the conflicting testimony about how the police entered the apartment building, see supra note 2, the government had failed to establish that the police had entered the building with consent; (2) the police entry into Harris's apartment had been coerced; (3) even if the entry into the apartment had not been coerced, the police nonetheless lacked any basis for entering Harris's bedroom; and (4) the consent form signed by Harris did not validate the search that had already taken place. The motions Judge also concluded that the government had failed to show exigent circumstances sufficient to justify entry into either the building or the apartment. In reaching this ruling, however, the motions Judge did not expressly apply all the relevant criteria, as set forth in our caselaw, for determining when there are exigent circumstances. The only findings on that issue were that the entry had been made ten hours after the offense and without any information showing that Harris would be at home.

On appeal, the government does not contest the motions Judge's ruling that the police entered Harris's apartment without consent. Nor does it argue that Harris consented to the search of his bedroom. The government contends, however, that (1) the warrantless entry to arrest Harris was lawful because of the exigent circumstances of the case and that (2) once inside the apartment, the police were entitled to search Harris's bedroom as part of the arrest procedure. The government also argues that Harris did not have a legitimate expectation of privacy in the building's common hallway.



Warrantless, nonconsensual searches or seizures within the home are presumptively unreasonable under the Fourth Amendment. See, e.g., Derrington v. United States, 488 A.2d 1314, 1322 (D.C. 1985) (citing Payton v. New York, 445 U.S. 573, 586, 588-89, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980)), cert. denied, 486 U.S. 1009, (1988). A warrantless, nonconsensual entry into the home to make an arrest may be justified, however, where there are "exigent circumstances." See, e.g., Minnesota v. Olson, 495 U.S. 91, 100, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990); Welsh v. Wisconsin, 466 U.S. 740, 749-50, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984); Payton, 445 U.S. at 588-590; Derrington, 488 A.2d at 1323; United States v. Minick, 455 A.2d 874, 876 (D.C.) (en banc), cert. denied, 464 U.S. 831, 78 L. Ed. 2d 112, 104 S. Ct. 111 (1983); Dorman v. United States, 140 U.S. App. D.C. 313, 435 F.2d 385 (1970) (en banc).

The Supreme Court has not attempted a comprehensive definition, of the exigent circumstances exception to the warrant requirement. The leading cases in which the Court has upheld warrantless, nonconsensual entries into the home to make an arrest remain United States v. Santana, 427 U.S. 38, 42-43, 49 L. Ed. 2d 300, 96 S. Ct. 2406 (1976), and Warden v. Hayden, 387 U.S. 294, 298-99, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967). In both of these cases, police were in "hot pursuit" of suspects whom they had probable cause to arrest. *fn5 But the Court has intimated that exigent circumstances may exist even where police are not in hot pursuit of the suspect, and we, along with numerous other jurisdictions, have so held. *fn6 In Minick, for instance, we concluded that exigent circumstances sufficient to justify a warrantless entry still existed some four-and-a-half hours after a rape, owing to the need to preserve evanescent evidence of the crime. See id., 455 A.2d at 876, 880-82. And in Derrington, we held that a delay as long as twenty-six-and-a-half hours between the crime and the warrantless entry did not necessarily negate the existence of exigent circumstances. See id., 488 A.2d at 1321, 1323-24.

In Minick, Derrington, and other cases involving the exigent circumstances exception, we have followed the approach laid out in the en banc opinion of the United States Court of Appeals for the District of Columbia Circuit in Dorman. In concluding that exigent circumstances justified a warrantless entry to apprehend an armed robbery suspect approximately four hours after the crime, the Dorman court considered seven different factors. As later summarized in United States v. Lindsay, 165 U.S. App. D.C. 105, 110, 506 F.2d 166, 171 (1974), the Dorman criteria are:

(1) That a grave offense is involved, particularly a crime of violence;

(2) the suspect is reasonably believed to be armed;

(3) a clear showing of probable cause;

(4) a strong reason to believe that the suspect is in the dwelling;

(5) the likelihood of escape if not swiftly apprehended;

(6) a peaceful entry as opposed to a "breaking"; and

(7) the time of entry (night or day).

See also Minick, 455 A.2d at 876. Not all of the Dorman factors need be present in a given case to justify a warrantless entry. See Gaulmon v. United States, 465 A.2d 847, 850 (D.C. 1983). Rather, we evaluate the degree of exigency according to the totality of the circumstances. See State v. Lloyd, 61 Haw. 505, 606 P.2d 913, 918 (Haw. 1980) and Commonwealth v. Forde, 367 Mass. 798, 329 N.E.2d 717, 720 (Mass. 1975), cited in Gualmon, 465 A.2d at 850; see also Lindsay, 165 U.S. App. D.C. at 111, 506 F.2d at 172. "The very term 'exigency' commands that analysis be shaped by the realities of the situation presented by the record." *fn7 Gaulmon, 465 A.2d at 850 (quoting United States v. (Vance) Robinson, 174 U.S. App. D.C. 351, 354, 533 F.2d 578, 581 (1975) (en banc), cert. denied, 424 U.S. 956, 47 L. Ed. 2d 362, 96 S. Ct. 1432 (1976)) (internal quotation marks and brackets omitted).

Furthermore, the fact that exigent circumstances may exist at some point during the investigation of a crime will not necessarily justify a warrantless entry if there is a period of unnecessary delay during which the exigency evaporates or the police might have obtained a warrant. See Minick, 455 A.2d at 881 & nn.11 & 12. Thus, in cases such as this, where a substantial period of time has elapsed between the commission of the crime and the warrantless entry, we have supplemented the Dorman criteria with the following questions concerning the timing of the entry within the context of the investigation as a whole:

(1) At what time did the police decide they had sufficient cause to pursue [the suspect]?

(2) Did the police act reasonably in waiting that long to do so?

(3) By the time the police were ready to move against [the suspect], were there exigent circumstances justifying a warrantless entry under Dorman . . . ?

(4) If so, did the police enter the premises without unreasonable delay?

Minick, 455 A.2d at 876; see also Derrington, 488 A.2d at 1323-24.

In reviewing the trial court's suppression order, we are bound to accept the court's factual findings, absent clear error. See, e.g., Derrington, 488 A.2d at 1323; Minick, 455 A.2d at 876. However, "appellate deference to the trial court is limited in this context to findings of fact." Minick, 455 A.2d at 880 n.6 (citing Brooks v. United States, 367 A.2d 1297, 1302 (D.C. 1976)); see also United States v. Booth, 455 A.2d 1351, 1355 n.5 (D.C. 1983). Where the essential facts are not in dispute, the ultimate determination as to whether exigent circumstances justified a warrantless entry remains a Conclusion of law, which we decide de novo. See United States v. Socey, 269 U.S. App. D.C. 453, 459, 846 F.2d 1439, 1445, cert. denied, 488 U.S. 858, 102 L. Ed. 2d 123, 109 S. Ct. 152 (1988); (Vance) Robinson, 174 U.S. App. D.C. at 353, 533 F.2d at 580.


We begin our analysis with the first two questions set forth in Minick : "At what time did the police decide they had sufficient cause to pursue the defendant?" and "Did the police act reasonably in waiting that long to do so?"

In this case, the trial court did not make any finding as to when the police decided that they had sufficient cause to pursue Harris. However, the record quite clearly indicates that Detective Sitek believed he did not have probable cause to arrest Harris until after one witness had picked out Harris's photo from a photo array, i.e., between 2:45 a.m. and 3:00 a.m. on the morning of November 16, 1991. Sitek testified that, before midnight of November 15, he had obtained information that the "Mario" named by witnesses as the shooter was Mark Harris. While this information was enough to make Harris a suspect, Sitek did not believe that it provided an adequate bound for arresting Harris. Only after one witness had made a positive identification of Harris from the photo array did Sitek assemble an arrest team.

We see nothing unreasonable in Sitek's decision not to pursue Harris before obtaining this visual identification. Up until that point, the only evidence linking Harris to the shooting was a mere match of names. Sitek's prudence in waiting to obtain more substantial evidence before attempting an arrest was, if anything, commendable. See Minick, 455 A.2d at 877 ("an approach that forces the police to seek a warrant as soon as they arguably have probable cause may result in premature police intrusions upon individual privacy").


We turn now to the third -- indeed, the central -- question posed by Minick : whether, applying the seven Dorman criteria, there were exigent circumstances sufficient to excuse the failure to seek a warrant at the time the police decided to move against Harris, i.e., between 2:45 and 3:00 a.m. In answering this question, we assume for the sake of argument that Harris had standing to contest the initial entry through the building's locked front door into the apartment building's common hallway *fn8 -- an entry not based in any way on the information Harris's mother later supplied that he was in the apartment. Consequently, we focus our attention on the circumstances of this initial entry, in contrast with the subsequent entry into Harris's apartment after Dovie Dozier had told the police her son was there. On review of all the Dorman criteria, we conclude that exigent circumstances fully justified the initial entry into the building's common hallway and, thereafter, into Harris's apartment.

In the first place, our overriding concern in reaching this Conclusion is the gravity of the offense and what that offense indicated about the character of the shooter and the danger that he posed to the community. See Brooks, 367 A.2d at 1302 ("community security is the basic concern underlying this criterion"). This was an exceptional case. The killing was not committed in the course of a robbery or a drug deal gone bad, nor was it prompted by jealousy or revenge. The evidence showed that the shooter had chosen a defenseless victim entirely at random and that the only motivation for the killing was that "someone" had stolen the shooter's bicycle. Furthermore, both before and after the killing the shooter had threatened to "shoot up all of Park Road until he got his bicycle back." Both the killing and the random shots at passing cars made it clear that this threat, however extravagant, was all too real. Thus, the police had reason to believe that they were dealing not just with a murderer, but with a mentally unbalanced individual whose actions would be difficult to predict and who might well kill again if not apprehended. *fn9 Indeed, given the particular irrationality of the earlier killing, police would have had some basis for fearing that Harris might fire on them or others in order to resist arrest. *fn10

Second, continuing through the Dorman factors, we note that police had reason to believe that Harris was still armed. While they had no direct evidence that Harris still had a weapon when they decided to undertake the warrantless arrest operation, the police knew that the shooter had been seen brandishing a 9-mm pistol and that no weapon had been recovered from the murder scene. This information was sufficient for them reasonably to conclude that Harris had a gun. Cf. Dorman, 140 U.S. App. D.C. at 321, 435 F.2d at 393 (conclusion that exigent circumstances existed took into account fact that appellant armed while committing crime).

Third, the evidence fully supports the motions Judge's Conclusion that the police had probable cause to make the arrest. One witness had picked out Harris's photo as that of the shooter, and two others had said the shooter was "Mario," Harris's apparent nickname.

Fourth, while the police did not have any direct proof that Harris was on the premises when they first entered the building, they did know that Harris lived at that address, and the early morning hour suggested that he might likely be asleep there." *fn11 See id. ("concepts of probable cause and reasonableness prima facie justify looking for a man at home after 10 p.m.").

Fifth, there was no particular evidence that Harris was likely to escape. Indeed, the record shows that once police arrived on the scene, they covered the rear windows to the apartment, thereby reducing the possibility of any escape. Under the circumstances, however, police also had a strong interest in discovering as soon as possible whether Harris was in fact on the premises, for if he was not, they would have had to search for him elsewhere to ensure the protection of the residents of Park Road. Merely surrounding the building and waiting to see whether Harris eventually emerged was not a workable alternative. Indeed, the fact that the police, in covering all exits, could presumably prevent Harris's escape would not protect residents inside the building from Harris's random shooting. Furthermore, we have often considered under this heading the related danger that evidence of the crime might be hidden or destroyed. See Derrington, 488 A.2d at 1324; Minick, 455 A.2d at 878, 880-81; Brooks, 367 A.2d at 1303. In this case, the longer the police waited, the more likely it was that the suspect would dispose of the murder weapon. "Exigency is heightened where the evidence about to be removed is a bin used to kill." Derrington, 488 A.2d at 1324.

Sixth, there was conflicting testimony as to whether the initial entry into the building had been forced or not, see supra note 2, and the motions Judge was unable to determine which version was most credible.

Seventh, the police entered the building in the dead of night, at an hour when it was highly unlikely that anyone would be awake, thereby increasing the impact of the intrusion on the occupants' privacy. We also recognize, however, that the early morning hour might well have increased the time that would have been required to obtain a warrant. See Dorman, 140 U.S. App. D.C. at 321, 435 F.2d at 393.

Finally, we must answer the last Minick question: whether the police entered the premises without unreasonable delay once they decided to arrest Harris. See Minick, 455 A.2d at 876. As we noted above, Detective Sitek decided to move against Harris at approximately 2:45 a.m. to 3:00 a.m. By 3:50 or 3:55 a.m., according to Sitek, his arrest team had arrived at 1372 Kenyon Street. Harris's mother testified that the police knocked on her door at 4:00 a.m. Thus, at most one hour and a quarter elapsed between the time that the police decided to make the arrest and the time that they entered the Harris apartment. Although Sitek testified that it was sometimes possible to obtain a warrant within an hour, he also noted that the process could take as long as two or three hours. See Derrington, 488 A.2d at 1324 (detective knew it would take two to three hours to obtain warrant). As there is no authorization for the issuance of telephonic warrants in this jurisdiction, see Minick, 455 A.2d at 878 n.3, we will not second-guess Detective Sitek's judgment that he would have been unable to obtain a warrant and reach Harris's apartment in the same amount of time, see Derrington, 488 A.2d at 1324 (hour-and-a-quarter delay between identification of suspect and arrest operation not unreasonable). Nor is there any other evidence in the record to suggest that the police delayed their arrest action unreasonably.

Considering all of these factors, we conclude that the police acted reasonably in entering the apartment building without a warrant. The police had probable cause to arrest Harris and reason to believe that he was extremely dangerous, unpredictable, and a continuing threat to the community. They also had grounds for thinking that Harris would be armed and some basis for believing that he would he on the premises even before Harris's mother confirmed this suspicion. While there was no evidence that Harris was likely to escape, this was counterbalanced by the strong police interest in determining whether Harris was in fact on the premises, in protecting residents of the apartment building, and in preserving evidence. Finally, there is no evidence that the police delayed unreasonably in executing their plan once they had decided to arrest Harris. It is true that the entry took place late at night and may have been forced, but we conclude that the need to apprehend a murder suspect whom police had reason to fear might kill again randomly, without warning, outweighed the intrusiveness of the forced entry into the building.

We conclude that exigent circumstances also justified the entry into Harris's apartment. At that point, in addition to the information described above, the police had also learned from Harris's mother that Harris was indeed present on the premises. Moreover, the police entry into the apartment was relatively peaceful. Although the motions Judge found that this entry was nonconsensual, the record also shows that the police did not break into the apartment. These factors, taken together with the circumstances already outlined, rendered the warrantless entry into Harris's apartment lawful.

A nonconsensual, warrantless entry and arrest in a private residence at 4:00 a.m. is the kind of police action that most Americans would consider typical of a totalitarian state; it should be sanctioned in our society only in the most extreme circumstances. We believe, however, that such exceptional circumstances existed in this case, given the severity and random nature of the crime and the realistic possibility that the criminal would kill again if not apprehended immediately.

Accordingly, we conclude that Harris's arrest in his home was lawful and that the gun clip found on his person is admissible against him as evidence properly seized in a search incident to arrest. See United States v. (Willie) Robinson, 414 U.S. 218, 235, 38 L. Ed. 2d 427, 94 S. Ct. 467 (1973) ("in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment"); Chimel v. California, 395 U.S. 752, 762-63, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969) ("When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.").


Having concluded that the warrantless entry to arrest Harris was lawful, we must now consider whether the search of Harris's bedroom was also justified in connection with that arrest. In general, where police have lawfully entered a residence to effect an arrest, warrantless, nonconsensual searches of the premises are reasonable in four situations. First, until they have located the suspect they seek, the police may search the premises generally for the purpose of apprehending the suspect. See Buie, 494 U.S. at 332-33; Hayden, 387 U.S. at 299; United States v. Manley, 632 F.2d 978, 986, (2d Cir. 1980), cert. denied, 449 U.S. 1112 (1981). Once the suspect has been found, however, that rationale for searching the premises disappears. See Buie, 494 U.S. at 333; Brooks, 367 A.2d at 1305. Second, in the course of arresting the suspect, the police may search the area within the arrestee's "immediate control" to prevent the arrestee from grabbing a weapon or evidence. See Chimel, 395 U.S. at 763. Third, even after the arrestee has been seized, the police may in certain situations also undertake a "protective sweep" of the premises to protect against the danger of an attack from an accomplice while they are completing the arrest procedure. See Buie, 494 U.S. at 334; Earle v. United States, 612 A.2d 1258, 1264-65 (D.C. 1992). Finally, both before and after the arrest a further search of the premises -- limited in scope -- may be justified by "emergency" or "exigent" circumstances, e.g., a reasonable belief that a person may be in need of aid or that important evidence may be destroyed or removed. *fn12 See Michigan v. Tyler 436 U.S. 499, 510, 56 L. Ed. 2d 486, 98 S. Ct. 1942 (1978) (investigation of causes of fire); Earle, 612 A.2d at 1263-64 (search for possible shooting victims); Clark v. United States, 593 A.2d 186, 196-199 (D.C. 1991) (same); Sturdivant v. United States, 551 A.2d 1338 (D.C. 1988) (limited search for murder weapon justified by inherent danger of sawed-off shotgun and possibility that other household members would use or destroy it), cert. denied, 493 U.S. 956, (1989). See generally Thompson v. Louisiana, 469 U.S. 17, 22, 83 L. Ed. 2d 246, 105 S. Ct. 409 (1984) (warrantless search of premises under emergency exception limited to items in plain view during "victim-or-suspect" search); Mincey v. Arizona, 437 U.S. 385, 392-93, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978) (same); Douglas-Bey v. United States, 490 A.2d 1137, 1138-39 (D.C. 1985) (same). Clearly, neither of the first two grounds applies to the search of Harris's bedroom, because Harris was already in custody in the apartment hallway when the police entered his bedroom, and because the bedroom was manifestly beyond his immediate control as he stood in the hallway. The government, therefore, urges us to uphold the search either as a protective sweep or on the basis of exigent circumstances.


In Buie, the Supreme Court defined a protective sweep as "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." 494 U.S. at 327. The Court explained the policy basis for allowing such a search in the following terms:

The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry or Long frisk [ see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983)] occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's "turf." An ambush in a confined setting of unknown configuration is more to he feared than it is in open, more familiar surroundings.

Buie, 494 U.S. at 333. The Court then went on to hold that two types of protective sweeps are reasonable and lawful under the Fourth Amendment.

First, "as an incident to the arrest officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Id. at 334 (emphasis added). This limited type of protective sweep of spaces immediately adjoining the place of arrest resembles the search of areas within the arrestee's immediate control sanctioned in Chimel, in that the police may make both types of searches as a routine precautionary procedure, without any particularized, reasonable suspicion. *fn13 In either case the exception accounts for a police officer's natural -- and reasonable -- instinct for an immediate, narrow search for self-protection from the arrestee (Chimel) or from any possible third party who could fire a weapon or otherwise accost the officer at close range (Buie).

Second, police may undertake a broader search of the home, i.e., beyond immediately adjoining spaces, when they are aware of "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." *fn14 Buie, 494 U.S. at 334. Like the pat-down for weapons approved in Terry or the search of the automobile passenger compartment sanctioned in Long, this second kind of protective sweep in the home can only be justified by a reasonable, particularized suspicion. See Buie, 494 U.S. at 334 & n.2. See generally Cuthbertson, (supra) note 13, at 175-76.

We believe that the brief search of Harris's bedroom was lawful under the first of these two categories. Although the Buie court did not define further what it meant by the term "spaces immediately adjoining the place of arrest from which an attack could be immediately launched," other courts applying Buie have interpreted this phrase to include rooms that are directly adjacent to the place of arrest. *fn15 In this case, although the motions Judge made no findings on this issue, uncontradicted testimony at the suppression hearing clearly indicated that Harris's bedroom opened directly onto the interior hall where he was held, frisked, and arrested. Indeed, the police first encountered Harris as he was leaving this bedroom. Consequently, consistent with caselaw from other jurisdictions, we conclude that Harris's bedroom definitely falls within Buie's first category of "spaces immediately adjoining the place of arrest" that police may briefly search, even without reasonable suspicion, as a routine safety precaution.

It is true that the police had no actual evidence that a possible attacker would be in this room. They had already apprehended Harris himself, and there was no evidence that any accomplices had been involved in the Park Road shooting. The only indication that anyone else might have been there was the thump heard by Officer Bailey, but this had occurred before Harris had left the bedroom, and Bailey attributed the noise to Harris's dropping a gun. Nevertheless, even though the police may not have had any factual basis for believing that anyone else was in the bedroom, they were entitled under Buie to make a protective sweep of the room as a reasonable, general precaution because it immediately adjoined the place of arrest. *fn16


Where police have grounds for conducting a protective sweep, it must be "narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Buie, 494 U.S. at 327. Thus, a valid protective sweep may not he transformed into a full-scale search for evidence. Id. at 335. " warrantless search must be 'strictly circumscribed by the exigencies which justify its initiation' . . . ." Mincey, 437 U.S. at 393 (quoting Terry, 392 U.S. at 26). However, evidence discovered in plain view during the course of a valid, properly limited protective sweep may he seized lawfully. See Earle, 612 A.2d at 1265 (citing Coolidge v. New Hampshire, 403 U.S. 443, 467-68, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971)). See generally Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990).

In this case, the motions Judge found that an officer entering Harris's bedroom saw an ammunition clip on a book shelf and two guns between the bed and the wall. Although the Judge did not specifically find that these objects were in "plain view," the supporting record clearly indicates that the weapons and ammunition were readily visible to police as they checked to make sure that no one else was in the room. Detective Sitek testified that he saw "a separation of the bed from the wall," that he "thought there could be somebody hiding back there," and that when he went to look he saw a pistol. Officer Bailey specifically testified that the pistol and the Tec-9 automatic weapon were in plain view once he walked up to the bed in Harris's room and that he did not have to move anything to see them. Thus, the record demonstrates that (1) the scope of the search of Harris's bedroom was no broader than necessary to assure that there was no one else in the room and (2) the police discovered the weapons and the ammunition clip in plain view in the course of that search. *fn17

Having arrived at this Conclusion, we need not consider the government's alternative contention that the search of Harris's bedroom can also be justified on the ground of exigent circumstances. In any case, the officers' testimony clearly indicated that, in undertaking the search of the bedroom, it was their safety that was uppermost in their minds, rather than the danger that evidence might be destroyed or that weapons left on the premises might harm others. That testimony conforms to the Buie exception.


In sum, our analysis of the record has led us to the following Conclusions. First, we conclude under the exigent circumstances exception to the warrant requirement, as formulated in Dorman, Minick, and Derrington, that the police were entitled to enter Harris's building and apartment to arrest Harris, especially given the evidence suggesting that he was a random and unpredictable killer who might strike again, without provocation, if not apprehended as soon as possible. Consequently, the arrest of Harris was lawful and the evidence obtained from his person was admissible because it resulted from a search incident to arrest. Second, we conclude under Buie that the police, having begun the process of arresting Harris in the apartment's interior hallway, could properly make a protective sweep of Harris's bedroom (even though they lacked any specific, articulable basis for suspecting that someone else was in there who might endanger their safety), because the bedroom was an adjoining space from which an attack might be launched. Once inside the bedroom, police could lawfully seize the guns and ammunition there because this evidence was in plain view.

Accordingly, we reverse the order of the trial court suppressing this evidence and remand this case for further proceedings.

So ordered.

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