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Moore v. States

February 17, 2000

BYRON MOORE, APPELLANT,
V.
UNITED STATES, APPELLEE



Before Schwelb, Farrell, and Washington, Associate Judges.

The opinion of the court was delivered by: Washington, Associate Judge

Appeal from the Superior Court of the District of Columbia

(Hon. Robert E. Morin, Trial Judge)

Argued December 14, 1999

After the trial judge denied Byron Moore's pretrial motion to suppress physical evidence, Moore waived a jury trial, and was convicted of carrying a pistol without a license,*fn1 possession of an unregistered firearm,*fn2 and unregistered ammunition.*fn3 Moore filed a timely appeal to this court and argues that the decision of the police officers to forcibly enter the apartment he occupied was not justified by exigent circumstances, and violated the "knock and announce" statute, D.C. Code § 33-565 (g) (1998), and the Fourth Amendment. Although this is admittedly a close case, we disagree and affirm.

I. FACTUAL SUMMARY

Metropolitan Police Department Officer Christopher J. Thornton obtained a search warrant for weapons at 5400 First Place, N.W., Apartment 2. Officer Thornton had been notified by an informant that large amounts of cannabis were being sold out of an apartment on First Place in northwest Washington, D.C., and that three men in the apartment carried 9 MM guns in their waistbands in the event someone attempted to rob them. Based on the foregoing information, Officer Christopher Thornton considered the warrant "a high risk search warrant" and informed Officer Sergeant Michael L. Russell that a Special Operations Emergency Response Team ("ERT") would be necessary to execute the warrant. Officer Thornton informed Sgt. Russell that he might encounter three individuals in the apartment with 9 MM weapons.

Sgt. Russell, after surveying the location, became concerned about receiving gunfire, without cover, from a front window in the apartment. He was also concerned that there was no "invisible approach" to the front door of the apartment, and that the apartment door was wooden and thus "not very good at stopping bullets," if while executing the search warrant the individuals inside decided to fire upon the police.

On August 1, 1995, at approximately 11:00 a.m., the ERT team, consisting of thirteen members, six to surround the building and seven to make the entry, executed the warrant. Using a passkey from the Postal Service, the ERT team entered the building without difficulty. The trial judge credited Sgt. Russell's testimony that, once in the building, he loudly knocked on the apartment door and announced in a loud voice, "Police. Search warrant. Open the door." After announcing his presence, Sgt. Russell heard nothing. He waited six to seven seconds and then instructed two officers to ram down the door to the apartment, as he was concerned that the officers were "crammed in a small area" and exposed to possible gunfire because they were directly outside the apartment door. After forcibly entering and securing the apartment, the officers followed Moore to a bedroom closet, where he dropped a .357 caliber revolver, and then surrendered to the police. II. STANDARD OF REVIEW

The issue of whether there were exigent circumstances to permit the officers' forced entry into the apartment occupied by Moore is a mixed question of law and fact. West v. United States, 710 A.2d 866, 868 (D.C. 1998) (citing Griffin v. United States, 618 A.2d 114, 117 (D.C. 1992)). Although, the factual findings of the judge cannot be disturbed unless they are clearly erroneous, the judge's legal conclusions are reviewed de novo. Id. "Because basic constitutional liberties are implicated, we apply the more searching de novo standard." Id. (citing Poole v. United States, 630 A.2d 1109, 1117 (D.C. 1993) (footnotes omitted).

III. ANALYSIS

The requirement that the police knock and announce their presence before entering an individual's home to execute a search warrant "is inherent, at least to some degree, in the Fourth Amendment's prohibition against `unreasonable searches and seizures.'" Poole, 630 A.2d at 1116 (citation omitted). D.C. Code § 23-524 (a) (1995) provides in pertinent part that:

An 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 ...


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