Appeals from the Superior Court of the District of Columbia (M-963-04; M-964-04). (Hon. John H. Bayly, Jr., Trial Judge).
Before Schwelb and Reid, Associate Judges, and Ferren, Senior Judge.
The opinion of the court was delivered by: Ferren, Senior Judge
Appellants Sean Brown and Sophia Lewis were each charged with two counts of possession of a prohibited weapon (PPW),*fn1 three counts of possession of an unregistered firearm (UF),*fn2 and one count of unlawful ammunition (UA).*fn3 Before trial, Brown filed a motion to dismiss the information on the ground that he was immune from prosecution under D.C. Code § 7-2507.05 (a) (2001).*fn4 Lewis joined in the motion claiming that any immunity available to Brown was available vicariously to her as well. The trial court denied the motion after a hearing, concluding that Brown was not entitled to immunity because he had not complied with the statutory requirements for voluntarily and peaceably delivering and abandoning a weapon. We affirm.
On January 30, 2004 -- the day before his arrest in this case -- appellant Brown was arrested on weapons charges.*fn5 While in custody in connection with that arrest, Metropolitan Police Department (MPD) officers informed Brown that rifles were illegal in the District of Columbia and that the proper procedure for surrendering any weapon would be to deliver it to a police station. At a hearing on his motion to dismiss the information, Brown testified that MPD officers told him that, in order to dispose of the rifles properly, he would have to unload them and wrap them up. On cross-examination by the prosecutor, Brown further testified that his conversations with law enforcement officers on January 30 concerned weapons he kept in other states, not in the District of Columbia.
The next day, January 31, Brown was released from police custody and, according to his testimony, walked directly home to 2041 Rosedale Street, N.E., intending to gather up weapons and ammunition that he kept there and surrender them at MPD headquarters.
Brown added that when he arrived at 2041 Rosedale Street, N.E., he gathered three firearms -- two rifles and one shotgun -- as well as ammunition located in the home, and placed them into a red duffel bag. Brown further testified that, before bagging the weapons, he did not inspect one of the rifles (which he described as a double-barrel shotgun) to determine whether it was loaded. However, he inspected the two rifles, which were semi-automatic weapons, and determined that they were unloaded.
Meanwhile, MPD officers had obtained a warrant to search 3048 Thayer Street, N.E. -- the address that Brown had given as his home address when he was arrested on January 30. Several women, one of whom was appellant Lewis (Brown's girlfriend), were at the Thayer Street house when MPD officers arrived. As officers were entering the residence to execute the search warrant, an elderly woman told Officer Correa that Brown did not live there, although he stored things there in the garage.*fn6 According to the woman, Brown lived with Lewis at 2041 Rosedale Street, N.E. While officers were in the Thayer Street house, Lewis received a telephone call. Officer Thomas Ellingsworth watched Lewis while she was on the phone and testified that she was acting very secretive because she kept saying, "Hello, yes, uh-huh, uh-huh, I can't speak right now, the police are here." When Lewis noticed that Officer Ellingsworth was observing her, she hung up the telephone very quickly.
Upon learning that Brown lived with Lewis at 2041 Rosedale Street, N.E., Officer Correa returned to the station house to prepare an emergency search warrant, while Officers Ellingsworth, Figueroa, and Rodriquez went to the Rosedale Street address to secure the residence until a search warrant could be obtained. Alone in a marked police car, Officer Ellingsworth pulled up in front of 2041 Rosedale Street while Officers Figueroa and Rodriquez arrived at an alley at the rear of the house. Shortly thereafter, Officer Ellingsworth saw Brown open the front door carrying a red duffel bag in his hand. When Brown noticed the police car parked in the front of his house, he turned around and went back inside. Officer Ellingsworth then contacted Officer Figueroa by telephone. He warned her that Brown had just attempted to come out of the front door, and that he might attempt to leave from the rear. Officer Figueroa, who was positioned in the alley a short distance from the rear of the house, saw Brown open the back door carrying a red bag in his hand. When Brown noticed Officers Figueroa and Rodriquez in the alley, he went back inside the house and quickly closed the door. Brown then re-opened the back door and came outside with a dog, but without the red bag. Figueroa and Rodriquez called out to Brown and began talking to him, although neither officer said anything about the red bag which they had seen Brown carrying moments earlier.
Because Brown's actions seemed suspicious and Officer Figueroa feared that he might try to hide or tamper with evidence, the officers told Brown that he could not go back into his house until other officers arrived to execute a search warrant. Officer Figueroa informed Brown that he and the other officers wanted to search the house for weapons and ammunition. Brown did not tell Officer Figueroa that he had such items inside his house or that he wanted to abandon and surrender them.
Both Brown and Lewis, who subsequently arrived at the Rosedale Street house, gave oral and written consent to search the residence. During the search, officers discovered a red bag on the kitchen table containing three firearms -- one of which was loaded with thirteen rounds of ammunition -- and a smaller bag of ammunition. The officers also found additional boxes of ammunition in other rooms of the house. Brown and Lewis were placed under arrest.
Before trial, Brown filed a motion to dismiss the information, arguing that he was immune from prosecution pursuant to D.C. Code § 7-2507.05 (a), supra note 4. The trial court concluded that Brown was not entitled to such immunity, however, because (1) the evidence did not show that he had complied with the statutory requirements that the weapons to be surrendered must be unloaded and securely wrapped, and further, because (2) the evidence of Brown's purported intention to surrender his weapons and ammunition to the police was not clear and unequivocal.*fn7 At best, according to the court, the evidence of intent was ambiguous; Brown's actions on January 31 were ...