Appeal from the Superior Court of the District of Columbia; (Hon. Joseph M.F. Ryan, Jr., Trial Judge)
Before Wagner, Chief Judge,* Terry, Associate Judge, and Reilly, Senior Judge.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: Appellant was convicted of possession of cocaine with intent to distribute it, in violation of D.C. Code § 33-541 (a)(1) (1993). On appeal she maintains that the trial court erred in (1) failing to suppress certain physical evidence seized during the execution of a search warrant, on the ground that the police violated the "knock and announce" statute, D.C. Code § 33-565 (g) (1993); (2) failing to suppress evidence seized from her daughter, assertedly in violation of the Fourth Amendment; (3) failing to suppress her own statement that she lived in the apartment where the search took place, which she contends was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); and (4) limiting cross-examination of a police officer about the contents of the affidavit in support of the search warrant. We reject all of these contentions and affirm the conviction.
Several police officers executed a search warrant at appellant's second-floor apartment at approximately 7:15 p.m. on January 18, 1990. When they arrived, they found the front door to the apartment partially open. Looking through the open doorway, the officers saw appellant seated in a chair in the living room next to the window. Officer Francis Jenkins testified that, while he and his companions stood in the hallway outside the apartment, appellant was looking at him and appeared to be aware of his presence. He knocked on the open door and announced that he was a police officer and that he had a search warrant, but appellant said nothing in reply. Jenkins and his fellow officers then walked through the open door into the apartment. Appellant and her two grown daughters were inside, along with several small children. While the police were conducting their search, one of the officers asked appellant whose apartment it was; appellant replied that it was hers. The search yielded a substantial quantity of crack cocaine, *fn1 drug paraphernalia, cash, and personal papers bearing appellant's name.
The District of Columbia's knock and announce statute provides that, in the course of executing a search warrant for controlled substances or related items, a police 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 the warrant, if, after notice of his authority and purpose, he is refused admittance." D.C. Code § 33-565 (g) (1993); see generally Griffin v. United States, 618 A.2d 114, 119-125 (D.C. 1992); Williams v. United States, 576 A.2d 700, 703-704 (D.C. 1990). We have recognized that this statute "codifies the common law rule that the police may not forcibly enter a person's house without prior announcement." Id. at 703 (citation omitted); accord, e.g., United States v. Patrick, 294 U.S. App. D.C. 393, 400-401, 959 F.2d 991, 998-999 (1992). *fn2 The statute "serves the important purposes of protecting the individual's right of privacy in his or her home, and of protecting police officers against unwarranted danger and encouraging police safety." Williams, supra, 576 A.2d at 703 (citations omitted). Accordingly, we have construed the statute to allow the police to enter forcibly when they "can reasonably infer from the actions or inactions of the occupants that they have been constructively refused admittance" or "are confronted with 'exigent' circumstances, such as the imminent destruction of evidence, or some danger to the entering officers." Id. (citations omitted); accord, e.g., Culp v. United States, 624 A.2d 460, 462 (D.C. 1993).
Appellant, relying primarily on Keiningham v. United States, 109 U.S. App. D.C. 272, 287 F.2d 126 (1960), maintains that the police entry into her apartment violated the requirements of section 33-565 (g) because, after knocking and announcing their authority and purpose at her open door, Officer Jenkins and his colleagues did not wait for any response before they entered. But Keiningham does not support appellant's argument.
In Keiningham the police went to a row house at 1106 18th Street, N.W., to execute arrest and search warrants. The persons named in the arrest warrants had been seen entering that house, but a search of the house for them was unsuccessful. During the search, the police discovered a newly constructed door connecting the second floor rear porch of 1106 18th Street with the second floor rear porch of 1108 18th Street, the house next door. Without knocking or announcing, the officers went through that door, which was unlocked, and then looked through a glass pane in another door leading into the house at 1108. Seeing the men they were looking for, the officers proceeded through this door, again without knocking or announcing their purpose. They arrested the men and seized various gambling paraphernalia which they found inside the house. Reversing the ensuing conviction for violating the gambling laws, the court ruled that the seized items should have been suppressed. On its way to that ruling, the court said:
We think that a person's right to privacy in his home (and the limitation of authority to a searching police officer) is governed by something more than the fortuitous circumstance of an unlocked door, and that the word "break," as used in 18 U.S.C. § 3109, means "enter without permission."
Id. at 276, 287 F.2d at 130 (emphasis added). The italicized language, though often cited by defendants seeking suppression, is plainly dictum, as the same court acknowledged very recently in United States v. Kemp, 304 U.S. App. D.C. 275, 277, 12 F.3d 1140, 1142 (1994). The actual holding of Keiningham was far less sweeping. The court said: "We hold that the officers 'entered' 1108 when they passed through the door . . . and we decide [this case] on the narrow ground that an announcement, at least, was required at that time." 109 U.S. App. D.C. at 276, 287 F.2d at 130 (emphasis added); see United States v. Kemp, supra, 304 U.S. App. D.C. at 277, 12 F.3d at 1142.
The Kemp case is particularly instructive because it makes absolutely clear that District of Columbia law *fn3 does not regard every non-permissive police entry as a "breaking." The court in Kemp characterized the language we have italicized in our quotation from Keiningham as "an overbroad statement" which is "not the law of [the District of Columbia] circuit, nor even the holding in Keinigham itself. . . . Although we have thrice cited Keiningham with approval, we have never relied upon the dictum equating every unauthorized entry with a 'breaking.'" Id. The court went on to distinguish Hair v. United States, 110 U.S. App. D.C. 153 289 F.2d 894 (1961), a case on which appellant also places great reliance. The record in Hair did not disclose whether the door of the house which the police entered was locked, closed but unlocked, or merely ajar. Nevertheless, the court "thought that there would be a breaking 'even if we were to assume that the door was left open,' quoting Keiningham for the proposition that 'a person's right to privacy in his home . . . is governed by something more than the fortuitous circumstance of an unlocked door. . . .'" Kemp, 304 U.S. App. D.C. at 277, 12 F.3d at 1142, citing Hair, 110 U.S. App. D.C. at 156, 289 F.2d at 897. The court in Kemp observed that "the assumption in the Hair opinion that an open door is as good as a closed one for purposes of [the knock and announce statute] was necessarily repudiated . . . by the decision in White [v. United States, 120 U.S. App. D.C. 319, 346 F.2d 800 (1965). cert. denied, 382 U.S. 1014, 15 L. Ed. 2d 529, 86 S. Ct. 625 (1966).]" *fn4 Kemp, 304 U.S. App. D.C. at 278, 12 F.3d at 1143.
The facts in Kemp are very similar to the facts in the case at bar. In Kemp a police officer with a search warrant went to the defendant's apartment and knocked on the door, which swung open when he knocked. "Through the open door the officer saw the defendant and two others sitting on a sofa in the living room, watching television. The officer announced his presence and purpose to execute a search warrant while standing at the threshold and then without further delay entered the apartment." Id. at 276, 12 F.3d at 1141. On these facts the court found no "breaking" within the meaning of 18 U.S.C. § 3109 *fn5 and reversed a trial court order suppressing evidence seized in the apartment by the police. Id. at 278, 12 F.3d at 1143. One Judge, in a Concurring opinion, read Keiningham and later cases more narrowly, but concluded nevertheless that there was no breaking in Kemp because the officer had knocked and announced his purpose in full view of the defendant, who was in fact aware of the officer's presence as he stood in the hallway just outside the open door -- exactly what happened in this case. See id. at 278-279, 12 F.3d at 1143-1144 (Wald, J., Concurring).
Reading Keiningham, Hair, and White *fn6 together, with the illumination provided by Kemp, we adopt the reasoning of Kemp and hold that an entry through an open door by a police officer with a search warrant, after the occupant is made aware of the officer's presence and purpose, is not a "breaking" within the meaning of the knock and announce statute. *fn7 Like the court in Kemp, we reject the notion that "an open door is as good as a closed one" *fn8 for the purposes of that statute. It follows that there was no breaking ...