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Howard v. United States

August 27, 2009


Appeal from the Superior Court of the District of Columbia. (F-24967-06) (Hon. John M. Mott, Trial Judge).

The opinion of the court was delivered by: Terry, Senior Judge

Argued May 6, 2009

Before TERRY, SCHWELB, and KING, Senior Judges.

Appellant was convicted of possession of cocaine with intent to distribute it. On appeal from that conviction, he argues (1) that the trial court abridged his Sixth Amendment right to confront the witnesses against him by limiting his cross-examination of the police officers who executed a search warrant at his home, and (2) that the court abused its discretion by permitting testimony about an internal police finding that the use of force against appellant's brother during the execution of the search warrant was justified. We reject the second argument but agree with the first, and thus we reverse appellant's conviction and remand the case for a new trial.


A. Factual Background

A search warrant was executed on November 7, 2006, at appellant's home at 3327 D Street, S.E., by a team of officers from the Sixth District of the Metropolitan Police. The search warrant was based on an affidavit signed by Officer David Randolph which included information from a "special employee" (i.e., a police informant) who had purchased drugs at that same address. During the search, according to the government's evidence, Sergeant Kai Gainey encountered appellant and his brother, Lester Howard, in a back room and told them to put their hands on the wall. Sergeant Gainey noticed that appellant repeatedly made a dropping gesture with his right hand and saw a purple package fall from his hand to the floor.

Officer Seamus Brackett then entered the room, patted appellant down, and tried unsuccessfully to handcuff him. The officer told appellant to leave his hands against the wall, but appellant replied that his arm was broken. Because appellant continued to be uncooperative, Sergeant Gainey went to assist Officer Brackett. Lester Howard then told Sergeant Gainey to "get off" appellant because appellant's arm was broken, but it was unclear which arm he was talking about because the officer did not see either a cast or a sling. Sergeant Gainey began struggling with Lester Howard just as Officers Jonathan Branch and Marcellus Jenkins came into the room. After ordering Lester Howard "several" times to stop resisting, Officer Branch struck him twice in the face. Lester Howard was eventually subdued, but he suffered a broken nose as a result of his struggle with the police.

Officer Randolph entered while appellant was resisting arrest and assisted Officer Brackett in handcuffing him. Brackett then searched appellant, while Sergeant Gainey and Officers Randolph and Branch were present, and found a folded piece of aluminum foil in his left rear pants pocket which contained a white rock-like substance. He also retrieved the bag from the floor that appellant had previously dropped, and inside it he found multiple purple ziplock bags which also contained white rock-like substances. Both the rocks in the ziplock bags and the rock in the foil packet were field-tested for cocaine and yielded a positive result. Officer Tony Mason was also a member of the team executing the search warrant, but it is unclear whether he actually entered the house.*fn1

B. The Motion to Suppress

Before trial, appellant filed a motion to suppress evidence, asserting that the search warrant leading to the recovery of the cocaine was defective because the supposed sale of drugs to the special employee never occurred. The motion also alleged that several months earlier, on January 31, 2006,*fn2 Sixth District Officers Jonathan Branch and Tony Mason grabbed and handcuffed appellant at his home, causing him to fall and break his arm. As a result of this incident, appellant filed a civil suit against the city and Officers Branch and Mason.

At the suppression hearing, the government called Sergeant Kai Gainey and Officers David Randolph, Seamus Brackett, and Aisha McCrary, and appellant called Officers Mason and Branch. Officer Randolph testified that he swore out an affidavit on November 3 and took it to a judge, who signed a warrant authorizing a search of the premises at 3327 D Street, S.E. The affidavit included information from the special employee who had purchased drugs at that address. Officer Randolph said that he knew Officers Mason and Branch, but that he did not speak to either of them before obtaining the warrant in this case. He was unaware of the incident between appellant and those officers, and did not learn about appellant's suit against the police department and the officers until some time after the execution of the search warrant. Randolph testified that Officers Branch and Mason were not involved in the special employee drug buy, in writing the affidavit, in obtaining the search warrant, or in writing the return, although those two officers - along with several others - were part of the team that executed the warrant. He also said that no police officer told the special employee to go to appellant's house; rather, the employee had met another person who directed him there to purchase cocaine.

Officer McCrary testified that, as the "seizing officer," she did not see the recovery of the drugs from appellant, but was merely told where the drugs came from. Both Officers Mason and Branch denied that they asked any other police officers to obtain a search warrant for appellant's home or to secure a special employee to make a drug buy there. Sergeant Gainey stated that neither Mason nor Branch instructed him to target appellant's house for a search warrant and that he was present when drugs were recovered from appellant. Officer Brackett testified that he was a member of the team that executed the search warrant, that he did not know about appellant's lawsuit at that time but found out about it a few months later, and that Officers Branch and Mason had not said anything unusual about the search before it occurred.

The court denied appellant's motion to suppress, ruling that the search warrant was facially valid and established probable cause. After expressly finding the officers' testimony credible, the court said that the warrant would have established probable cause "even with the inclusion of information about a lawsuit filed by the defendant, who is the owner of ...

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