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UNITED STATES v. GAITHER

November 10, 1994

UNITED STATES OF AMERICA
v.
TIMOTHY GAITHER, ANGELA MORTON, Defendants.



The opinion of the court was delivered by: STANLEY SPORKIN

 This matter came before the Court on November 2, 1994 for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), and on the defendants' motion to suppress evidence from a search on August 17, 1994. The Court held the Franks hearing because defendants claimed that two people on whom Detective James Bradley had relied in his affidavit that was submitted in order to obtain the search warrant allegedly later stated that they had not made the statements cited in the affidavit.

 Facts

 On August 17, 1994, Detective James Bradley completed an affidavit for a search warrant as part of an investigation of the murder of security guard Earl McDaniels. The warrant was for 5929 East Capitol Street, S.E. #1106, an apartment in the complex where Earl McDaniels was slain. Detective Bradley stated that he was looking for two weapons, a pistol believed to have killed Earl McDaniels and a revolver taken from McDaniels, certain items of clothing and "evidence relating to narcotics trafficking." *fn1"

 Detective Bradley stated in the affidavit that he had spoken with both Joseph Gaither, the defendant's brother and Kathryn Gaither, the defendant's mother on August 17, 1994 outside Mrs. Gaither's home at 5924 Southern Avenue, S.E. *fn2" According to Detective Bradley, Joseph Gaither had approached him and told him, among other things, 1) that he had seen Timothy Gaither with his nephew Albert Gaither Chapman, a suspect in the murder, 2) that Timothy Gaither had put a gun in Albert Chapman's hands, 3) that Timothy Gaither carried a number of guns in a backpack and 4) that Timothy Gaither was dealing drugs from inside his girlfriend's apartment and was using guns to protect his "drug" business. According to Detective Bradley's affidavit, Mrs. Gaither told him that Timothy Gaither was a bad influence on her grandson, Albert, and that she had seen "numerous firearms" inside Timothy Gaither's girlfriend's apartment at 5929 East Capitol Street, S.E. #1106.

 Analysis

 The defendants moved to suppress the evidence on the grounds that the entry into apartment #1106 violated the "knock and announce" rule of 18 U.S.C. § 3108 and that the warrant was invalid because Detective Bradley's affidavit contained intentionally or recklessly made false statements.

 Eighteen U.S.C. § 3109

 The Court heard testimony from Detective James Bradley, a Metropolitan Police Department Officer (MPD), currently on assignment with the Drug Enforcement Administration (DEA) on the REDRUM task force, who executed the warrant. Detective Bradley, a 24-year veteran of the MPD, testified that on August 17, 1994 about 8:00 p.m., he went to 5929 East Capitol Street, S.E. #1106 with 8 DEA agents. After listening outside the door and hearing nothing, Detective Bradley knocked loudly on the door three times and said "police officer with a warrant, open the door." Detective Bradley then heard "heavy footsteps" just inside the door moving quickly from left to right. He also heard children screaming. After waiting five to six seconds without any response from inside the apartment the police forcibly entered the apartment. Detective Bradley testified that he had ordered the entry team to break down the door because he was concerned about the safety of the entry team. Detective Bradley stated that he considered the fact that he was looking for a suspect in a gun killing and that he believed that there were guns in the apartment.

 Eighteen U.S.C. § 3109 requires that the police announce their authority and purpose and be refused admittance before forcibly entering the premises. Detective Bradley testified that he knocked loudly and announced who he was and his purpose. *fn3" This Court found his testimony credible. The issue then is whether the police were "refused admittance." The refusal need not be affirmative. See United States v. Bonner, 277 U.S. App. D.C. 271, 874 F.2d 822, 824 (D.C. Cir. 1989). A court must examine the circumstances of the entry to determine if there was "constructive" refusal.

 In this case, the circumstances justified Detective's Bradley decision to force the door. First, he heard the sounds of heavy foot steps near the door immediately after he had knocked and announced. A police officer is in a very different position if he or she hears an adult running inside the premises after the officer has knocked and announced than he or she would be if there were no evidence of anyone being inside. Second, the sound of running footsteps combined with no acknowledgement of the demand to open up may constitute constructive refusal after a reasonable period of time has elapsed. Third, the police were looking for a murder suspect and had been told that numerous weapons had recently been observed inside the apartment.

 The police must have the ability to take into account their own safety when they have good reason to believe, as they did here, that there are guns on the other side of the door. *fn4" While entry has been found improper when the police have hardly waited after knocking and announcing, this is not the case here. See, e.g., United States v. Sinclair, 742 F. Supp. 688, 691 (D.D.C. 1990) (Oberdorfer, J.) (finding entry 1 to 2 seconds after knock and announce violated 18 U.S.C. § 3109). After knocking loudly and announcing their presence and purpose, hearing sounds consistent with constructive refusal, and having reason to believe that a murder suspect and a number of weapons might be on the other side of the door, the police decided to enter the premises forcibly. The Court finds this decision proper. *fn5" See United States v. Barrett, 725 F. Supp. 9 (D.D.C. 1989) (Sporkin, J.).

 The Court held a hearing pursuant to Franks v. Delaware, supra, to determine whether there were false statements in Detective Bradley's affidavit. Defendants claimed that contrary to Detective Bradley's affidavit, neither Joseph Gaither nor Kathryn Gaither had reported to ...


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