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07/29/93 UNITED STATES v. MARK B. HARRIS

July 29, 1993

UNITED STATES, APPELLANT
v.
MARK B. HARRIS, APPELLEE



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.

I. THE SUPPRESSION HEARING

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.

II. THE WARRANTLESS ENTRY AND THE EXIGENT CIRCUMSTANCES EXCEPTION

A.

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 ...


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