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08/26/93 HOWARD T. POOLE v. UNITED STATES

August 26, 1993

HOWARD T. POOLE, APPELLANT
v.
UNITED STATES, APPELLEE. BELITTA M. SHOWELL, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Robert I. Richter, Trial Judge)

Before Ferren and Farrell, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: A jury found each appellant guilty of one count of second-degree burglary while armed, eleven counts of armed robbery, three counts of assault with intent to rob while armed, and one count of possession of a firearm during a crime of violence, based on evidence of appellants' involvement in the January 25, 1990, robbery of hair stylists and their clients at a beauty salon on Pennsylvania Avenue, S.E. *fn1 See D.C. Code §§ 22-1801 (b), -2901, -3202, -501, & -3204 (b) (1989 Repl. & 1993 Supp.). Both appellants challenge their convictions on a variety of grounds.

First, appellants assert that the trial court erred in denying their motions to suppress evidence discovered during the search of an apartment at 510 Ridge Road, S.E. Specifically, appellants argue that (1) the trial court was obliged to hold a hearing on their allegations that the affidavit underlying the search and arrest warrants was deficient and (2) the police violated our statutory "knock and announce" requirement, D.C. Code § 23-524 (a) (1989 Repl.), by using force to enter the apartment only ten seconds after they had knocked and announced their identity and purpose. With regard to the search warrant affidavit, we conclude that appellants failed to make a prima facie showing that the police engaged in deliberate deceit or reckless disregard for the truth. Accordingly, appellants were not entitled to a hearing under Franks v. Delaware, 438 U.S. 154,57 L.Ed.2d 667, 98 S. Ct. 2674 (1978). We also conclude that the forced entry was justified by evidence of exigent circumstances which showed that the police had reason to believe Poole was armed and that there was a realistic possibility he might use deadly force against the entering police officers.

Second, appellants argue that the government violated their Sixth Amendment right to counsel at their lineups and that the trial court accordingly erred in denying their motions to suppress identification testimony based on those lineups. Assuming there was such a constitutional violation, we conclude it was harmless beyond a reasonable doubt, given the strength of the evidence, including substantial untainted identification testimony, against both appellants.

Finally, appellant Poole alleges, separately, that his defense was unfairly prejudiced at trial by the admission of other crimes evidence and by prosecutorial misconduct; that his conviction for possession of a firearm during a crime of violence should merge with his other convictions; and that the trial court erred in summarily dismissing his motion for post-conviction relief. None of these claims has merit.

Accordingly, we affirm appellants' convictions in all respects.

I. THE EVIDENCE AT TRIAL

According to the government's evidence at trial, at 7:00 p.m. on the night of January 25, 1990, a woman knocked at the door of Lady M Fashions, a clothing store on Pennsylvania Avenue, S.E. The proprietor unlocked the door, let the woman in, and locked the door again. Shortly thereafter, when the proprietor turned her head to look for some suits for this apparent customer, the woman went to the door and let in a man. The man entered with his handgun drawn and announced, "This is a holdup." When the proprietor screamed, the man threatened her: "Scream again, bitch, and I'll kill you." The man then went into Nina's Beauty Salon, which was located next door, through an adjoining interior door. Inside the beauty salon, the man began waving the gun and demanding money from the hair stylists and their customers. Meanwhile, the woman collected money from people in the salon. Then, after forcing everyone into a back room, the man and woman fled.

Nine witnesses testified at trial that they had identified Poole as the male robber either at a lineup or from a lineup photo. All these witnesses also identified Poole at trial. Five witnesses identified Showell, both in court and either at a lineup or from a lineup photo, as the armed man's female accomplice. In addition, four witnesses identified a gun with a light-colored handle, found in a search of an apartment occupied by Showell at 510 Ridge Road, S.E., as resembling the gun used in the robbery.

In his defense, Poole presented testimony from a prosthetist orthotist, i,e., a specialist in designing and manufacturing prosthetic devices, that he had seen Poole in March 1989. At that time Poole walked with a limp as a result of a workplace injury which had amputated a portion of a toe. The orthotist testified that he had delivered a prosthesis to Poole in November 1989. This device helped to relieve some of Poole's pain in walking but did not immediately change Poole's gait, which would have required reeducation. The orthotist was unable to say, however, whether Poole still would have walked with a limp at the time of the robbery in January 1990. Poole's mother testified that her son still walked with a limp in January 1990. She also said that Poole lived with her at 612 Ninth Street, N.E.

Appellant Showell presented no witnesses in her behalf.

II. THE LEGALITY OF THE SEARCH OF 510 RIDGE ROAD

A. The Search of 510 Ridge Road

Several days after the robbery at Nina's Beauty Salon, two of the victims, Ron Oliphant and Marion Davis, saw a man who they thought was the armed robber working on a Volvo parked on Ridge Road. Oliphant contacted the police. An officer who responded to the call found appellant Poole working on a Volvo in the 500 block of Ridge Road and warned him that repairing cars on a public street was unlawful. Poole identified himself and said that he lived at apartment "three-something" (the officer could not remember the exact number), 510 Ridge Road, although the identification card he gave to the officer may have listed another address. The officer then radioed detectives with the address and the license plate number from Poole's car. In addition, according to the government's proffer at the suppression hearing, the police reviewed telephone records and found that Poole had a telephone listing at 510 Ridge Road. Based on this information, as well as on identifications of Poole from photo arrays, the police obtained warrants to arrest Poole and to search the premises of apartment 304 at 510 Ridge Road, S.E.

Detectives from the Robbery Branch, working in conjunction with five officers from the Emergency Response Team (ERT), a tactical group specially trained to deal with high risk situations, attempted to execute the warrants at about 8:15 a.m. on Saturday, *fn2 February 3, 1990. After entering the building at 510 Ridge Road, Sergeant Scott, the ERT leader, knocked on the door of apartment 304 three times with his blackjack and announced "Police, search warrant." Scott waited approximately five seconds, during which he heard nothing from inside the apartment, and then ordered the team to force the door open with a battering ram. Within ten seconds of the time that Scott had first rapped on the door, the team had begun ramming the door open. Once inside the apartment, they found appellant Showell along with a man and three small children, all in their nightclothes, watching television. Poole, however, was not there. After searching the apartment to see whether anyone else was present, the ERT team turned the premises over to detectives from the Robbery Branch. The detectives searched the apartment, finding a loaded .32 caliber Smith and Wesson revolver, five rounds of ammunition, two identification cards in Howard Poole's name and another in the name of Belitta Showell, and a photo of Showell and Poole together, among other items. Following the search, the police arrested Showell but not the male occupant.

Before trial, both appellants moved to suppress the evidence recovered from inside apartment 304, arguing that (1) the underlying search warrant was invalid because the affidavit on which it was based was defective and (2) the police violated D.C. Code § 23-524 (a) by failing to wait a reasonable time before breaking open the apartment door. *fn3

B. The Validity of the Search Warrant

In moving for suppression of evidence obtained from the search of 510 Ridge Road, appellants argued in part that the search warrant was invalid because the affidavit on which it was based was vague and conclusory and contained false information. In particular, appellants questioned whether the police had a good faith basis for the affidavit's assertion that Poole lived at 510 Ridge Road. The only information in the affidavit on this point was that there had been a "verification" of Poole's address. *fn4 Appellants claimed that the affiant displayed reckless disregard for the truth in failing to take into account information known and available in public records that Poole actually lived at 612 Ninth Street, N.E. Poole's counsel also asserted at the suppression hearing that Poole had told the police he lived at 612 Ninth Street and that his children lived at 510 Ridge Road. In response, the government proffered the information that Poole had been seen working on his car in front of 510 Ridge Road, that Poole had said that he lived at 510 Ridge Road, and that the affiant had checked telephone records and found that Poole had a phone at 510 Ridge Road. *fn5

The trial court ruled that there was insufficient evidence to warrant an evidentiary hearing on this claim. The court found that the affidavit was facially adequate for the issuance of the warrant, despite the affidavit's lack of detail, and that the evidence gave no reason to doubt the good faith of the police. Appellants renew their claim on appeal.

"There is . . . a presumption of validity with respect to the affidavit supporting search warrant." Franks v. Delaware, 438 U.S. at 171, 98 S.Ct. 2674, 57 L.Ed.2d 667. In order to merit an evidentiary hearing on the sufficiency of an affidavit, the defendant must (1) allege "deliberate deceit or reckless disregard for the truth, accompanied by an offer of proof," and (2) show that the affidavit, stripped of the allegedly false material or supplemented with improperly omitted information, does not support probable cause to issue a warrant. Dailey v. United States, 611 A.2d 963, 967 (D.C. 1992); see also Franks, 438 U.S. at 171. We agree with the trial court that appellants failed to carry their burden. It was undisputed that Poole had been seen at 510 Ridge Road and that he had a phone listing for that address. Given this information, the mere fact that Poole may have had another address, as defense counsel alleged, was insufficient to make out a prima facie showing that the police were acting recklessly in assuming that Poole lived at 510 Ridge Road. Even if the affidavit had specified that Poole also had another address, that would hardly have led to a Conclusion that the police lacked probable cause to search 510 Ridge Road.

C. The Knock and Announce Requirement

D.C. Code § 23-524 (a) *fn6 requires that the police execute search warrants in accordance with 18 U.S.C. § 3109 (1985), which provides as follows:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

An analogous provision, applicable to the execution of search warrants for controlled substances, appears in D.C. Code § 33-565 (g) (1988 Repl.). *fn7

Such "knock and announce" statutes, as they are commonly known, have ancient roots in Anglo-American law. *fn8 See Miller v. United States, 357 U.S. 301, 308, 313, 2 L. Ed. 2d 1332 , 78 S. Ct. 1190 (1958). The requirement that government officers executing a warrant announce themselves and request permission to enter before attempting a forced entry appeared in English common law as early as 1603:

In all cases where the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the King's process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors . . . .

Semayne's Case, 77 Eng. Rep. 194, 195 (1603) (emphasis added), quoted in Miller, 357 U.S. at 308. Following the lead of four Justices in Ker v. California, 374 U.S. 23, 46, 10 L. Ed. 2d 726 , 83 S. Ct. 1623 (1963) (Brennan, J., Dissenting), many federal courts of appeal have held that the knock and announce requirement is also inherent, at least to some degree, in the Fourth Amendment prohibition against "unreasonable searches and seizures." *fn9

The underlying purpose of the knock and announce requirement is threefold:

(1) it reduces the potential for violence to both the police officers and the occupants of the house into which entry is sought; (2) it guards against the needless destruction of private property; and (3) it symbolizes the respect for individual privacy summarized in the adage that "a man's [or woman's] house is his [or her] castle."

United States v. Bustamante-Gamez, 488 F.2d 4, 9 (9th Cir. 1973), cert. denied, 416 U.S. 970, 40 L. Ed. 2d 559 , 94 S. Ct. 1993 (1974). These interests are not absolute, however, and can be overridden in certain circumstances. Thus, in line with caselaw from other jurisdictions, we have recognized two situations in which the police need not wait for an actual reply before attempting a forced entry: (1) where the police may "reasonably infer from the actions or inactions of the occupants that they have been constructively refused admittance"; and (2) where the police are confronted with 'exigent' circumstances, such as the imminent destruction of evidence, or some danger to the entering officers." *fn10 (Craig) Williams v. United States, 576 A.2d 700, 703 (D.C. ...


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