Appeal from the Superior Court of the District of Columbia (F-9172-99) (Hon. Robert E. Morin, Trial Judge)
Before Schwelb, Farrell, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
This government appeal concerns an application of the general knock-and-announce statute, D.C. Code § 23-524 (a) (2001). A police officer, part of a team executing a search warrant at an apartment, waited forty-five seconds after first identifying his presence before forcibly entering the apartment. The trial court nonetheless suppressed evidence seized during the search because only after thirty seconds of that time had elapsed did the officer announce the authority and purpose for the police being there, i.e., the search warrant - the remaining fifteen seconds being too short, in the judge's view, to amount to a constructive refusal of admittance. We conclude that in the total circumstances of the case, including the antecedent thirty seconds during which the presumed occupants learned the identity of the person knocking, the police reasonably believed that they had been denied admittance to the dwelling and thus were entitled to use force to enter.
I. The Suppression Hearing
On the basis of the evidence seized, defendant Owens was indicted for several weapons offenses. At the hearing on his motion to suppress, the undisputed evidence was that on December 28, 1999, at approximately 5:00 p.m., Metropolitan Police (MPD) officers executed a search warrant at 44 Galveston Street, S.W., Apartment 101. The warrant authorized a search of the apartment for "illegal firearms" including "a nine millimeter firearm, .38 revolver, other ammunition [and] other firearms," as well as documents, paraphernalia, and "other indicia of illegal possession of firearms." The supporting affidavit stated that within the previous week a reliable individual had seen the named weapons in the apartment, and had also observed marijuana laced with PCP (or "Boat") stored in a freezer and being sold from the apartment. Additionally, the affiant, Detective Angelo Hicks of the MPD, who worked at the apartment complex part-time as a security guard, knew that an Andre Townsend resided in Apartment 101 with his girlfriend and four children. Hicks had personally seen "numerous people walk into apartment #101 [and] stay . . . for less than a minute and then leave"; he had received numerous complaints from residents of the building "about near-constant foot traffic into 44 Galveston Street, and specifically into apartment #101"; and within the past month he had "personally smelled marijuana emanating from apartment #101."
Hicks testified at the hearing that he knew Townsend to be the person living in Apartment 101, a one- or two-bedroom apartment. *fn1 Townsend and he were acquainted because Hicks would stop and talk with him on occasion and Townsend would "share . . . family information with me"; they had "a low rapport going . . . by me working there and him living there." Townsend knew Hicks by name and knew that he was a police officer.
When the warrant team arrived at Apartment 101, Hicks knocked on the door and said in a loud voice, "Andre, it's me, Officer Hicks." He did not immediately order Townsend to open the door because he wanted to present "a friendly manner so [Townsend] could come to the door[,] . . . look out the peephole and see that it was me since he knows who I am and I know who he is." As a result Townsend would have "time . . . to be able to cooperate and open the door without us having to use forced entry." Hicks, presumably in his capacity as security guard, had knocked on Townsend's door "[m]aybe on three other occasions" in the past to tell the occupants "that the marijuana smell was coming through the door." This time, Hicks knocked three times over a period of thirty seconds, each time saying in a loud voice, "Andre, it's me, Officer Hicks." During the thirty seconds, "there was no response [of] anyone coming to the door or anything." Hicks then announced his "authority and the purpose and intent for us being there, [saying `]police, we have a search warrant[.']" After "approximately 15 seconds" during which they heard nothing to suggest someone was coming to the door, the team rammed the door open and entered the apartment.
Sergeant Brennan, also with the warrant team, testified that on entering he saw Owens being detained in a corner of the apartment and saw an Eddie Bauer coat less than a foot away from Owens on the floor. (He was later told that the jacket had been removed from appellee.) When he picked it up and noticed that it was "heavier than a normal coat," he squeezed the pocket and felt a gun. He looked inside the pocket and found a handgun. Ammunition was found elsewhere in the apartment. Besides Owens, Townsend and five other persons were in the apartment at the time of the entry.
B. The Trial Court's Ruling
Owens argued that the police had failed to comply with the knock-and-announce statute and also had violated his Fourth Amendment rights by seizing him and frisking his coat without adequate particularized suspicion once they entered the apartment. The trial judge rejected the latter argument but agreed that the police had violated the statute in forcibly entering. He credited the testimony of Detective Hicks (and of Officer Brennan), but concluded that the fifteen seconds the police waited after announcing their authority and purpose "was not enough time . . . [for the] police to reasonably conclude that the door would not be opened," as required by the statute. Although just prior to that time Hicks had made "a 30-second informal attempt" to enter without force, the judge did not believe this "warrant[ed] the shortening of the time period which the police would need after properly announcing their purpose and authority," since it did not contribute to "put[ting] the people [inside] on notice that if they [did] not comply a forced entry [would] occur." Thus, in the judge's view, the issue "[came] down to whether . . . [after] knocking and announcing[,] 15 seconds is enough." And particularly given that this court in Griffin v. United States, 618 A.2d 114 (D.C. 1992), had "indicated [that in] a nighttime situation, 30 seconds is insufficient absent exigent circumstances," the judge concluded that the wait of fifteen seconds "absent exigent circumstances" was not long enough to allow a reasonable conclusion that the police were being refused entry.
"[T]he common-law principle of announcement is . . . an element of the reasonableness inquiry under the Fourth Amendment." Wilson v. Arkansas, 514 U.S. 927, 934 (1995). As relevant to this case, the requirement of announcement is embodied in D.C. Code § 23-524 (a), which in turn requires police to ...