APPEAL FROM THE SUPERIOR COURT, ERIC T. WASHINGTON, J. [710 A2d Page 867]
Before Schwelb and Farrell, Associate Judges, and Gallagher,
The opinion of the court was delivered by: Schwelb, Associate Judge:
Following the denial of his pre-trial motion to suppress physical evidence, James N. West, Jr. entered a conditional plea of guilty of possession of cocaine with intent to distribute it, in violation of D.C.Code § 33-541(a)(1) (1993). On appeal, he contends that police officers who had secured a warrant to search his apartment for narcotics violated the applicable "knock and announce" statute, D.C.Code § 33-565(g), by prematurely forcing entry into the apartment with a battering ram. He therefore claims that the evidence recovered as a result of that entry should have been suppressed. We agree and reverse.
Sergeant David Robinson of the Metropolitan Police Department, a nine-year veteran with extensive search warrant experience, was the principal government witness at the hearing on West's motion to suppress evidence. Robinson testified that, on September 28, 1995, at about 9:40 p.m., he and other officers under his command came to West's apartment in southeast Washington, D.C. to execute a search warrant for narcotics. When they arrived, Robinson heard the sounds of a video game being played in the apartment. He knocked on the door "real loud" and shouted "Police! We have a search warrant! Open the door!"
Sergeant Robinson testified that, after he knocked and announced, "[t]he video game stopped and I heard footsteps. They did not sound like they were coming towards the door, and no one answered the door." Suspecting that evidence might be in the process of being destroyed, Robinson instructed one of the officers to force the door with a battering ram. According to Robinson, the time that elapsed between the original knock and the entry with the ram was "about 5 seconds." In the apartment, officers recovered thirty-two rocks of crack cocaine, as well as seventy-five empty ziplock bags and a pager. West admitted that the cocaine and paraphernalia belonged to him.
At the conclusion of the hearing, the trial judge issued his oral ruling. The judge stated that he credited Sergeant Robinson's testimony. *fn1 He noted that Robinson was an [710 A2d Page 868]
experienced officer, and that "no reason was given for Sergeant Robinson not knocking and announcing." He found, in conformity with Robinson's testimony, that after Robinson had knocked and announced, the video game was placed on pause. Then, according to the judge, Robinson "for whatever reason, maybe hearing the children running, but certainly not an unreasonable interpretation, instructed the individuals to bang the door down." The judge also commented that Robinson "could have knocked and broken in within one second if he felt that that was a reasonable amount of time based on his experience and what he heard." The judge therefore denied West's motion to suppress tangible evidence. West entered a conditional guilty plea, and the judge sentenced him to a term of imprisonment. This appeal followed.
In reviewing the trial judge's decision, we are bound by his factual findings unless they are clearly erroneous. See D.C.Code § 17-305(a) (1997); Griffin v. United States, 618 A.2d 114, 117 (D.C. 1992). The judge's legal conclusions, on the other hand, are reviewed de novo. Id. (citations omitted). Whether the officers were "refused admittance" to West's apartment, within the meaning of Section 33-565(g), is a mixed question of law and fact. Id. Because basic constitutional liberties are implicated, *fn2 we apply the more searching de novo standard. Id. at 118; see also Poole v. United States, 630 A.2d 1109, 1117 (D.C. 1993), cert. denied, 513 U.S. 855, 115 S.Ct. 160, 130 L.Ed.2d 98 (1994). *fn2
Our "knock and announce" statute provides, in pertinent part, that an officer "may break open any outer or inner door . . . to execute [a] warrant [for controlled substances] if, after notice of his authority and purpose, he is refused admittance." D.C.Code § 33-565(g). The present appeal turns on whether the officers were "refused admittance" within the meaning of the statute.
"Refusal to admit the police is to be distinguished from failure to do so . . ., [for] to refuse to do something is an act of the will, while to fail to do it may be an act of inevitable necessity." Griffin, supra, 618 A.2d at 120 (citations and internal quotation marks omitted). "[T]he police need not wait for the occupants affirmatively to refuse them admittance [, however,] if the police can reasonably infer from the actions or inactions of the occupants that [the officers] have been constructively refused admittance. . . ." Williams v. United States, 576 A.2d 700, 703 (D.C. 1990). "Special circumstances supporting a reasonable belief on the part of the police that the occupants' non-response to knocking and announcement pursuant to § 33-565(g) is deliberate will justify a forced entry almost immediately after their detection." Griffin, supra, 618 A.2d at 124-25 (footnote omitted). In the absence of such special circumstances, however, "a significant time lapse is required to justify a conclusion that admittance was refused." Id. at 125 [710 A2d Page 869]
(citation and internal quotation marks omitted).
In the present case, there was no "significant time lapse." Sergeant Robinson testified that approximately five seconds elapsed between his knock on the door and the officer's use of the battering ram. During those five seconds, Robinson had to make the decision that forced entry was required. He also had to communicate to his subordinate that the time had come to "ram" the door. The officer then had to apply the battering ram to the door. Each of these steps takes at least a minimal amount of time, and the case is not so very ...