Appeal from the Superior Court of the District of Columbia, (CMD8509-04), (Hon. Jeanette Clark, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before GLICKMAN, KRAMER and OBERLY, Associate Judges.
Appellant Marcus Young was charged with (1) attempted carrying a pistol without a license (in his home), in violation of D.C. Code § 22-504 (a) and § 22-1803 ("attempted CPWL"); (2) attempted possession of an unregistered firearm, in violation of D.C. Code § 7-2502.01 (a) and § 22-1803 ("attempted UF"); and (3) attempted unlawful possession of ammunition, in violation of D.C. Code § 7-2506.01 (3) and § 22-1803 ("attempted UA").*fn1 Young entered a conditional guilty plea preserving his right to appeal the denial of his motion to suppress the tangible evidence in this case. He argues on appeal that (a) the trial court erroneously denied his motion to suppress, and (b) the convictions violate his Second Amendment rights under District of Columbia v. Heller, 128 S.Ct. 2783 (2008). We affirm.
The following relevant testimony was presented at the hearing to determine whether the physical evidence in this case should be suppressed.
1. Deputy Marshal Wayne Warren
U.S. Marshal Wayne Warren, assigned to the Capitol Area Regional Fugitive Task Force ("Task Force"), testified that he took part in executing an arrest warrant for Young at Young's home. The warrant was based upon Young's failure to appear for a court hearing in a separate CPWL case. When the warrant was executed, Marshal Warren also had information that Young was involved in a homicide, but Marshal Warren used the warrant from the CPWL case, obtained by Detective Stanley Farmer of the Metropolitan Police Department ("MPD"). Detective Farmer asked Marshal Warren to let him know if they found and arrested Young because he was interested in the possibility of getting a search warrant based on the homicide for which Young was being investigated.
Marshal Warren and the other members of the Task Force who were executing the warrant arrived at Young's house, an end-unit town home, between 6:00 a.m. and 7:00 a.m. When the officers approached the front door, they saw that the windows to the left of the front door were open. Through those windows, they saw a man lying down on his stomach on the living room floor with his hands underneath a pillow. An officer knocked on the front door, and the man began to move around. The officers announced that they were the police, commanding the man not to move and to let them see his hands.
One of Young's siblings opened the door from the inside,and Marshal Warren and two others approached the man, appellant Marcus Young, and "[g]ot him up off the floor, cuffed, and off to the side. The rest of the entry team went past [them] and began to do . . . a protective sweep through the rest of the residence to make sure nobody else was there."
The man was cooperative and told them his name was Marcus Young. This information, combined with Marshal Warren's recognition of Young based on photographs and physical descriptions, allowed Marshal Warren to confirm his identity.
Meanwhile, one of the officers who conducted the protective sweep called Marshal Warren downstairs into a basement bedroom where the officer had lifted the mattress from the box spring. There was a plastic bag with what appeared to be bullets inside it on top of the box spring. Marshal Warren told the officers to leave them there and that he was going to call Detective Farmer. He then went back upstairs.
However, Marshal Warren testified, because "[w]e got the defendant in custody so fast I wasn't feeling easy about something because [Young] was lying on the floor on a pillow." He asked whether someone had "searched that immediate area where they had taken [Young] into custody, because [they] usually put people on couches and so forth. . . . [N]obody said they had. So [Marshall Warren] said, well, we need to . . . move the pillows and the linens out of the way so [we] make sure there is nothing there [that would endanger] our safety before we sit him on the couch." At this point, "[o]ne of the deputies had pushed away the pillow and in the process of pushing away the pillow where [Young's] head was, there was a . . . dark-colored .45 [automatic handgun]."
Marshal Warren also testified that members of the Task Force typically look between box springs and mattresses because that space is one of the areas in which they commonly locate fugitives or other people and yet it was hard to discern whether someone was there without lifting both the mattresses and box springs. An example, he explained, was one case where "we had somebody that was hiding underneath a mattress, in between the mattress and the box spring, and we had a small child sitting on that bed that we were interviewing, and the fugitive was underneath the mattress."
When challenged on cross-examination as to why it was necessary to lift the mattress, Marshal Warren rejected Young's counsel's assertion that they could "have easily found out if anybody was hiding under the mattress by pushing down on the mattress," explaining that "you have got to understand that this is all happening simultaneously. When we're dealing with who we think was the defendant, they are doing their sweep of the house to make sure nobody else is inside, hiding, not knowing if we actually have him in custody or not." ...