The opinion of the court was delivered by: Roberts, District Judge.
Defendants in this case are both charged with two counts of
unlawful possession of unregistered firearms and two counts of
unlawful possession of controlled substances. In addition,
defendant Drummond is charged with one count of unlawful
possession of a firearm by a convicted felon. Defendant Drummond
moved to suppress tangible evidence seized from the defendants'
shared apartment on the day of their arrest, arguing that law
enforcement officers failed to knock and announce their presence
properly when executing a search warrant at that apartment.
Defendant McPherson joined in that motion.*fn1
I find that under the facts of this case, the Fourth Amendment
and the knock and announce statute, 18 U.S.C. § 3109 (1994) ("§
3109"), required the police to do more than they did before
entering the premises. The tangible evidence seized as a result
of the subsequent search therefore must be suppressed due to the
knock and announce violation.
On December 18, 1999, law enforcement officers executed a
valid warrant*fn2 to search for narcotics-related evidence at
apartment number one, 1837 Kendall Street, N.E., Washington,
D.C. ("1837 Kendall"). (Motions Hearing Tr. ("Tr.") at 4.)
Defendants in this case both live in that apartment. The police
obtained the warrant after a confidential source told them that
he had observed narcotics at that location. (Tr. at 4.) In
addition, police had received complaints from local residents
about narcotics sales there. (Id. at 5.)
The apartment is in a small, residential, two-story dwelling
containing only two apartments — the defendants' first-floor
apartment and an apartment upstairs. (Photographs admitted as
Def.'s Exs. 1, 4, 5.) The outer door to the dwelling is opaque,
with no windows allowing visitors to see into the space behind
it. (Def.'s Ex. 1.) Two utility meters are mounted to the left
of the outer door. (Id.) There appears to be a mailbox
directly to the right of the outer door. (Id.)*fn3 The
outer door is hinged on the left. (Id.) It opens into a small
entryway landing at the base of the narrow staircase leading to
the upstairs apartment. (Def.'s Ex. 4.) The landing's width
barely exceeds that of the narrow staircase, and its depth is
less than its width. (Def.'s Exs. 4, 5.) The inner door to
apartment one is immediately to the right of the landing. (Tr.
at 7.) Defendants represent in their papers that there were no
other residents living at 1837 Kendall at the time of the
search. (Drummond's Mot. Suppress Tangible Evid. at 2.) The
government has offered no evidence of other residents at that
address and appears to concede the vacancy in the second floor
apartment at 1837 Kendall. (Government's Opp'n to Mot. Suppress
Tangible Evid. at 2.)
Several hours before the warrant was executed, the
confidential source provided the police with some information
about the apartment. (Id. at 19-21.) The source told the
officers that the front door of the building at 1837 Kendall was
"usually secured; sometimes unlocked," (id. at 21), and that
the front door to apartment number one was sometimes left open
by the defendants. (Id.) Police did not otherwise discuss the
layout of the apartment with the source, nor was the source
asked any questions about whether there were other residents in
the building. (Id.) When the police arrived at 1837 Kendall on
December 18, 1999, they found the outer door locked. (Id. at
6.) The police did not knock and announce their presence at that
door. (Id.) The police used a battering ram or halogen bar to
force their way through this outer door. (Id.)
The police then stepped into the small entryway and found the
inner door to apartment number one slightly ajar. (Id. at 7.)
At this inner door, a police officer knocked and announced,
"Police, search warrant. Police, search warrant. Open the door."
(Id. at 26.) Immediately after this announcement, the police
pushed open the inner door and entered the apartment. (Id. at
Upon entering the apartment, police observed Drummond coming
from the bathroom into the living room. (Id. at 26.) The
officers spread out through the apartment to secure the
premises. (Id. at 35.) They found McPherson in the bedroom of
the apartment. (Id. at 10.)
The search yielded the following items: 1) a .25 caliber
pistol; 2) a 12 gauge shotgun; 3) $1175.00 in cash; 4) three
clear ziplock bags of heroin; 5) two blue ziplock bags of crack
cocaine; 6) mail belonging to each of the defendants; and 7) two
cell phones. (Government's Opp'n to Mot. Suppress Tangible Evid.
at 2.) The defendants seek to suppress all of that evidence.
Defendants argue that the police officers' failure to knock
and announce their presence and authority at the outer door at
1837 Kendall on December 18, 1999 violates the Fourth Amendment
and 18 U.S.C. § 3109. Defendants also argue that the police
violated the knock and announce requirement by not waiting a
sufficient time to allow the defendants to respond after
knocking and announcing at the inner door. Based on these
alleged violations, defendants argue that all evidence seized
should be suppressed.
The touchstone for Fourth Amendment analysis of government
action is reasonableness. See United States v. Ramirez,
523 U.S. 65, 71, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998). The common
law knock and announce principle forms part of the Fourth
Amendment reasonableness inquiry. See Wilson v. Arkansas,
514 U.S. 927, 930, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Section
3109 codifies the common law knock and announce requirements.
See Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190,
2 L.Ed.2d 1332 (1958). Taken together, these principles
establish that if the police do not comply with § 3109, they
violate the reasonableness requirement of the Fourth Amendment.
In this case, as there is no other challenge to ...