Appeal from the Superior Court of the District of Columbia (CMD-7835-06) (Hon. Truman A. Morrison, III, Trial Judge).
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and FARRELL, Associate Judge, Retired.*fn1
Opinion for the court by Chief Judge WASHINGTON.
Concurring opinion by Associate Judge, Retired FARRELL at page 16.
Appellant Darryl Martin was charged with carrying a dangerous weapon*fn2 and possession of an unregistered firearm.*fn3 Before trial, appellant moved to suppress the admission of physical evidence (a firearm) recovered from his home. Following the trial court's denial of the motion, appellant entered a conditional guilty plea to the charge of possession of an unregistered firearm, reserving his right to appeal the trial court's denial of his motion to suppress. Super. Ct. Crim. R. 11 (a)(2). On appeal, appellant contends that the trial court erred in concluding that the police did not conduct a search. We agree and reverse.
On April 20, 2006, Metropolitan Police Department (MPD) Officer Lenox Antoine responded to a radio assignment for a burglary at 312 Quackenbos Street, N.E. While en route, he received an update that shots had been reported fired. Upon arriving, Officer Antoine spoke with appellant, who stood outside the home. Appellant informed the officer that while he was standing in his mother's kitchen, he witnessed a man trying to break into an abandoned house across the street. Then, he heard a noise coming from the basement of his house. Appellant went to inspect the basement, when a man with a sledgehammer opened an exterior door to the basement. Upon seeing appellant, the man fled. Appellant chased him.
After hearing this information, Officer Antoine called detectives to the scene. Detective Collis Timlick arrived and learned from other officers on the scene that witnesses had seen appellant fire a shotgun outside the house before running back inside. Detective Timlick questioned appellant about this allegation, but appellant denied it. The detective then asked appellant for consent to search his house. Appellant refused. Detective Timlick then informed appellant that they would have to secure the premises until they received a search warrant. Then, either appellant or MPD called his mother, Eula Martin. Within fifteen to twenty minutes, Ms. Martin arrived at the scene. Detective Timlick informed Ms. Martin that witnesses reported seeing appellant fire the gun in the air. She then invited the officers to come inside.
Once inside the home, Detective Timlick informed Ms. Martin that the police would either have to get a search warrant to search her home, which would permit them to search the entire house for the shotgun, or she could assist them "by doing a consent to search and sign a form."*fn4 Appellant was present for this conversation and did not interject or object. Ms. Martin signed the authorization form.*fn5 Then, either Ms. Martin told her son to go get the gun or appellant went of his own accord; regardless, appellant went to a coat closet and retrieved the gun. It is undisputed that the police did not order him to do so. MPD officers arrested appellant.
Motion to Suppress Hearing
Appellant moved pretrial to suppress the shotgun, asserting that "[t]he police entered the defendants' [sic] home without a warrant," and that although the mother consented to a search, "the defendant was present denying the authority."*fn6 At the hearing, the government presented testimony from Officer Antoine, Detective Timlick, and a crime scene technician. On cross-examination, Detective Timlick admitted that appellant denied "consent to search the house." The defense called Ms. Martin. Ms. Martin confirmed that she invited the police into her home, that she signed the consent form, that appellant retrieved the gun from the closet, and that MPD did not order him to do so. She did not recall, however, the police ever mentioning a warrant. Ms. Martin acknowledged that she read the consent form and signed it.
The trial court considered Detective Timlick's testimony more persuasive than Ms. Martin's, as she had difficulty explaining what she thought when she signed the form. The court, however, noted that regardless of whose testimony it credited, it found that no search had occurred: "They didn't search the ...