The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Defendant Timothy P. Johnson, Jr., moves to suppress tangible evidence and to dismiss Count Three of the criminal indictment brought against him by the United States. The Court will deny the first motion and order further briefing on the second.
On November 27, 2007, the Federal Bureau of Investigation ("FBI") conducted a search of 4511 B Street, S.E., Apartment #101, Washington, D.C., pursuant to a search warrant issued by the Superior Court of the District of Columbia. Def.'s Mot. to Suppress at 2 [Dkt. # 9]. Recovered during that search was, inter alia, marijuana; heroin; phencyclidine ("PCP"); cocaine base, also known as "crack"; prescription pills; materials used to process and package illegal narcotics; weapons and ammunition; and documents bearing Mr. Johnson's name. Gov't's Resp. to Def.'s Mots. at 5 [Dkt. # 14]. Mr. Johnson was subsequently indicted in a three-count indictment charging him with unlawful possession with intent to distribute 100 grams or more of a mixture and substance containing phencyclidine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iv); using, carrying and possessing a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); and unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year in violation of 18 U.S.C. § 922(g)(1). See Indictment [Dkt. # 4].
Mr. Johnson now moves the Court to suppress the evidence seized during the execution of the search warrant ("Search Warrant") on the grounds that the Search Warrant was deficient; that law enforcement violated the knock and announce statute; and that the executing officers failed to execute the Search Warrant in accordance with the Superior Court's order. He separately moves the Court for an order dismissing count three of the indictment.
The Court will address each motion in turn.
A. Motion to Suppress Evidence
1. Was the Search Warrant Valid?
Detective William T. Sepeck of the FBI obtained the Search Warrant on November 21, 2007, after submitting an affidavit that stated that a confidential source ("CS"), within the last 24 hours, had notified Special Agent William Grover of a drug transaction being conducted from Apartment # 101 of 4511 B Street, S.E., Washington, D.C. See Def.'s Mot. to Suppress, Ex. A, Aff. of Detective William T. Sepeck, Jr. ("Sepeck Aff.") ¶ 7. Detective Sepeck further swore that agents took photos and escorted the CS to the location, where she positively identified the exterior of 4311 B Street, S.E., and Apartment # 101 from the photographs. See id.
The Search Warrant was executed in the early morning hours of November 27, 2007, while Mr. Johnson and Ms. Arita Sheppard were sleeping. Def.'s Mot. to Suppress at 2. "Thinking that intruders were breaking into the premises, for his safety and Ms. Sheppard[sic], Mr. Johnson attempted to leave the apartment through the window located near where he and Ms. Sheppard were sleeping." Id. Contraband was discovered during the search and Mr. Johnson was arrested and charged. Id.
a. Was There Probable Cause Behind the Search Warrant?
Mr. Johnson contends that the Search Warrant lacked probable cause. He notes that the Fourth Amendment of the United States Constitution safeguards the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and that "no warrants shall issue, but on probable cause . . . ." U.S. Const. amend. IV.
Probable cause is determined based on the totality of the circumstances, taking into consideration the "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Illinois v. Gates, 462 U.S. 213, 230-31 (1983). Regarding the ...