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U.S. v. KELLY

May 29, 2003

UNITED STATES OF AMERICA
v.
DEVON J. KELLY, DEFENDANT.



The opinion of the court was delivered by: James Robertson, District Judge

MEMORANDUM ORDER

Defendant Devon Kelly is charged by indictment with one count of unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by a term of imprisonment exceeding one year, 18 U.S.C. § 922(g)(1). The firearm was found in Kelly's automobile by officers of the Metropolitan Police Department (MPD) on November 17, 2002. Kelly has moved to suppress the physical evidence of the firearm, arguing that the MPD officers violated his Fourth Amendment rights when they recovered the gun. For the reasons set forth below, that motion is denied.*fn1

Background

On November 17, 2002, at around 4:30 in the morning, Officer Michael Architzel of the MPD, on patrol at the time, responded to a call reporting an injured man at the intersection of Kenilworth Avenue and Quarles Street, Northeast, in the District of Columbia. Initially, the report Architzel received was of a man shot in the head, but before reaching the location, he was informed that he was actually responding to a traffic accident. Transcript of May 1, 2002 Hearing ("Tr.") at 7. Architzel was the first officer to arrive at the scene.

Architzel described Quarles and Kenilworth as forming a "T intersection," Tr. at 7, in that Quarles Street ends at the intersection with Kenilworth. Id. Straight across from the end of Quarles Street, on the far side of Kenilworth, is a guard rail. Id. At the intersection, Architzel observed a white Chevrolet Blazer that had struck the guard rail. The front of the Blazer was touching the guard rail, part of the Blazer was on the grass, and the rear end of the Blazer was protruding onto Kenilworth Avenue. Tr. at 8.

Architzel saw that a man, whom Architzel identified at the hearing as Kelly, was "jammed in" the driver's side window of the Blazer, Tr. at 8. Kelly's lower legs were caught in the window, while his body was sitting upright outside of the window, and his arms were thrashing about. Id. He was emitting various "unintelligible noises." Tr. at 19. As Architzel approached Kelly, he observed foam emanating from Kelly's mouth and a glazed look in his eyes. Tr. at 9. Architzel attempted to extricate Kelly from the car window, but could not. Tr. at 10.

At around that time, two other policemen — Officer Ronald Burgeson and Sergeant Foster — arrived on the scene. Burgeson grabbed Kelly, so that he would not fall, while Architzel entered the Blazer from the passenger side (the first entry) in order to lower the window in which Kelly was stuck. Tr. at 39. While Architzel was in the car for this purpose, he observed on the floor of the driver's side a gun box, which he recognized because, in his experience as a police officer, "numerous officers use just such a box to store their personal weapons in," himself included. Tr. at 11. He searched neither the box nor the car at that time, however, and instead lowered the window so that his colleagues could remove Kelly.

Once Kelly had been removed from the vehicle, the officers attempted to ascertain his identity, since they had already determined that Kelly needed hospitalization, and because Kelly had been involved in a traffic accident. Tr. at 12. They asked Kelly directly, but he was "incoherent," Tr. at 11, and provided no information. After a search of Kelly's pockets revealed no identification, Architzel, along with Officer Henderson who had arrived on the scene, entered the car (the second entry) to look for a driver's license in the glove compartment, and to search for the gun that would presumably accompany the gun box Architzel had previously seen. Tr. at 12, 15. Henderson opened the glove compartment, found Kelly's license, and closed the glove compartment. Tr. at 22. Architzel searched the passenger compartment, Tr. at 15, and he opened the gun box, Tr. at 63, but he found no gun.

Soon thereafter, an ambulance arrived. Kelly, accompanied by Burgeson, was taken to Howard University Hospital. Architzel stayed on the scene of the accident. He first attempted to ascertain who owned the Blazer, which bore District of Columbia temporary license plates. Architzel "ran" the car's Vehicle Identification Number (VIN) with the dispatcher, Tr. at 14, but the only information that came back was that the car was "an untagged vehicle in the state of Pennsylvania with no ownership information." Id. At this point Architzel entered the car again (the third entry), this time to look in the glove compartment for the registration. Tr. at 13. The glove compartment in this car was situated next to a center console that held a DVD player. Architzel testified that, as he opened the glove compartment, the door of the glove compartment "must have caught the corner of the center console and it basically just pushed it [the center console] out about two or three inches." Tr. at 32. As the center console slipped out of place, Architzel spotted the butt end of a gun behind the console. Tr. at 33. He removed a "D.C. bill of sale/registration," Tr. at 15, from the glove compartment, and let go of the door of the glove compartment. The glove compartment snapped shut, and the center console slid back into place. Tr. at 33. Architzel then notified the crime scene search unit so that they could recover the gun, which turned out to be a Baretta 9 millimeter pistol, Tr. at 16, and he called the MPD officers at the hospital to advise them to place Kelly under arrest for possession of the firearm. Tr. at 31. Finally, Architzel moved the car, which was partially still jutting out onto Kenilworth Avenue, to a legal parking spot on the street. Tr. at 16.

Analysis

The Supreme Court's Fourth Amendment analysis "has traditionally drawn a distinction between automobiles and homes or offices . . . [and] warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not." South Dakota v. Opperman, 428 U.S. 364, 367 (1976) (internal citations omitted). Nonetheless, "a car's interior as a whole is . . . subject to Fourth Amendment protection from unreasonable intrusions by the police." New York v. Class, 475 U.S. 106, 114-15 (1986). As all of Architzel's searches of Kelly's car were undertaken without a warrant, it was incumbent upon the government to show that the searches were justified. The parties focused their briefing and argument on Architzel's third entry, and rightly so, as it was the third entry that yielded the pistol. However, a brief discussion of the first two entries is in order.

The First Entry

Architzel effected the first entry in order to assist Kelly, who was in obvious distress. It is well settled that "the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid." Mincey v. Arizona, 437 U.S. 385, 392 (1978); see Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir.) ("The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or ...


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