Griffin v. United States

enough of negotiation support his of for immor-

conviction solicitation lewd or GRIFFIN, Appellant, Bill J. purposes. al STATES, Appellee. UNITED

The cases discussed above establish previously sug rejected that this court has No. 90-CM-531. gested scope limitations on the 22- Appeals. District Court Columbia person giving money, the 2701 to the person receiving money, person or the 2, 1991. Oct. Submitted Likewise, initiating the conversation. 18, 1992. Decided Dec. nothing discernible from the there is words suggests any statute that limi such While this court heretofore tations. has specifically question addressed people involved can be con both soliciting pur of the crime of

victed

poses acts, of lewd or immoral it would be

contrary purpose of the statute only application par

limit in each case. either

ties involved When

individual could be convicted under the

statute, including the did individual who

not initiate the conversation but whose re

sponse “inviting, ripened enticing, per into

suading, addressing,” forcing gov or person

ernment to choose one the other or nothing

to prosecute would be more than a

purely arbitrary rule. We no reason find limiting scope statute such leading way. process to the lewd readily invitation, may

immoral act involve (or

enticement, persuasion, addressing purposes) part

for one of those progresses;

either side as discussion thus parties

both commit violations of the

statute, reject ap as here. therefore

pellant’s only par assertion that one of the

ties involved can be convicted of solicitation purposes. or immoral lewd

Affirmed.

SCHWELB, Judge: Associate prime great As a British minister is said it more two put to have than ago, quarter centuries [English] man’s his castle [ejvery house [is] [ 1].... may in his poorest man the forces of cottage bid defiance all frail; may may It its roof the Crown. it; shake; may through the wind blow enter; enter; may may the rain storm King England enter— but the cannot the threshold all his force dares cross ruined tenement! 301, 307 Miller v. United n. n. & 1194& L.Ed.2d Pitt, (quoting Earl William Chatham). where Even look- are armed with a search warrant and drugs, forcibly enter they they given have first a residence unless purpose and presence notice of their admittance. have then been refused D.C.Code § using a In the ram, executing a search officers who appellant the door of warrant broke down 1:40 Bill Griffin’s mother’s a.m., thirty seconds after approximately They announced.” “knocked and Griffin, money. “crack” found cocaine student, high arrested and school charged possession with misdemeanor 33- D.C.Code controlled substance. 541(d) (1988). trial, suppress moved

Before Griffin by tangible evidence obtained entry. following their forced motion, and Griffin was judge denied the DC, now Delehanty, Washington, by jury. He Andrew J. thereafter convicted court, contending the evidence appointed appeals, filed brief suppressed. hold ought have appellant. been prove failed to government that the Jay Stephens, Atty., B. and John R. admittance” had “refused the officers been Fisher, Tourish, Jr., Kuo, Peggy Thomas J. notice, required given after Yette, Attys., Frederick W. Asst. U.S. evidence was unlaw- therefore that the DC, Washington, appellee. filed brief Accordingly, fully we reverse Grif- seized. ROGERS, Judge, fin’s and remand case Before Chief conviction SCHWELB, Judges. grant suppress. his motion to TERRY directions to Associate castle, refugi- (1644), cuique tutissimum et domus sua 1. See also Sir Edward Coke, Third Institute refuge every- (One's quoted um." home is the safest in John Bartlett, Quotations Familiar one.) 1980): ed. "For a is his & n. man's house apartment. placed Bill The officers plastic under arrest and seized the Griffin THE FACTS bag and its contents. suppres- at the There were two witnesses Christopher Griffin testified that on the hearing. sion Officer Curt Sloan bedroom,4 night question, he was his Metropolitan Department testified Police getting ready go to bed. He heard loud prosecution. the Bill Griffin’s sixteen- banging on the door. There were two brother, year-old Christopher, testified knocks, Christopher stated that and the defense. He “right did came behind each other.” Sloan, According to Officer the voices, any hear did know that not and not a search for the had obtained warrant Suspecting door. the were the apartment in question, which located attempting that someone was to break into D.C., Washington, southeast after a con- house, Christopher grabbed a bat from the drug purchase trolled had been made there the in the bedroom under one of two beds by “special employee” evening, be- a dining room. He and headed towards the midnight, days fore some nine to thirteen brother, Griffin, his heard Bill answer the ap- the earlier. Sloan and other officers door, Immediately it?” say and “who is proached apartment, the side door of the thereafter, Christopher heard loud a crash previous allegedly drug buy where the had swung open and into as the door smashed occurred. This door had no windows.2 Of- By in the the time the radiator kitchen. announced, loudly ficer Sloan knocked room, Christopher dining the the reached “Police, warrant, up.” I open have a search already They police were kitchen. later, response having Ten been his to “freeze” and had ordered brother obtained, Sloan knocked and identified him- against the wall. leaning him over the stove again. self once After an additional passed any response, Officer Sloan hearing argument, After extensive the stepped aside that the “ram team so [could] sup- judge denied motion Griffin’s get open forcibly position in a the door credible,6 press. He found both witnesses with a ram.” The “ram broke team” then testimony, accepted ap- Officer Sloan’s open Approximately thirty the door. sec- finding parts Christopher’s de- parently elapsed Officer onds between Sloan’s scription sequence the of events less knock and the ram-en- initial on door judge thought also plausible; apartment. hanced into the greater Christopher had a stake in the out- The judge Officer did. come than Sloan apartment, found Inside the officers found, in tes- conformity with officer’s lying living Bill a Griffin sofa elapsed timony, thirty seconds that about room.3 On a coffee table next to the sofa Sloan’s initial announce- between Officer lay plastic ziplock bag containing “a a substance,” demise of the door. Correct- to ment white rock which turned out that, ly noting applicable under the case Bill be crack cocaine. Griffin had $150.00 law, co- a refusal of admittance need person, packages on his and more explicit, judge that the offi- money recovered elsewhere concluded caine lights apart- This was located on the far side of 2. Officer Sloan saw no. bedroom room, playing, and heard no television or radio utility ment or distance from considerable any He win- other sound. testified that the which the broke down. See door something “appeared to be covered with dows supra, note 3. light coming This that would shield "something” in.” also, presumably, could have been that, rebuttal, "to 5. On Officer Sloan testified keep used at out. recollection,” anyone my he did not hear best ask who is it. one-story apartment, side lo- two-story ground build- cated on level of testified, apparently, truthfully. bedroom, 6. “Both sides ing, opens bathroom, hallway a small into Nobody impeached. Nobody room, particularly utility and another bedroom side, kitchen, along right dining looked on the witness stand to me. No- room bad living body's particularly deficient.” on the left. demeanor was room 17- D.C.Code ly erroneous” standard. reasonable time before cers had waited a 305(a) (1989); v. United Lawrence resorting to ram: (D.C.1989); fixed point is there is no obvious McConney, F.2d rea- talking time. We’re about what’s banc), Cir.) (en my judg- at least in sonable that ... 83 L.Ed.2d ment, does a sort of a zone for allow accept the inferences drawn might While I operate. him, judge as to the facts before the trial decision, they’re allowed make same supportable inferences are long as those so against mine. While to make decision of the evidence. reasonable view under may disagree long people it takes on how States, 576 See, e.g., Williams down, they’re get come [dressed] (D.C.1990). A.2d disagree me and take allowed with this reasonableness. that there in a loud lice officer midnight, seeing together considered, to be sustained. drugs over seconds, shorter closing And, we They’re In this time. ^[*] making seeing light what was people seconds. I think that all of but windows, with the not at which is not case we been have evidence ... of the [was] manner. ^[*] We have evidence knocked they’re an of time. out, sold I think the low ^[*] going if it which would black fact and have the fact in a recently, up on inside. once, extreme far keeping people heavy certain zone have drugs, on in away that a ^[*] evidence material suggest of four around can be twice, there, ought this, wait ^[*] po- of McConney, supra, 728 review of Frank n. 7 non-deferential de novo the words primary court minimize on the lupe v. nine heads are reflects wiser lies is made systems that an court’s] chitects of our state every A.2d (D.C.1991); best The other Coffin, than a trial important appellate judicial numbers; responsibility positioned to decide the issue the only by group of questions of law ... serves of trial hand, Chief shrewd claim The court’s error (D.C.1988). usually are reviewed Judge appellate judge judge. Ways three, five, judgment by assigning to the standard. Guada superior F.2d legal equals. better of a Coffin, federal [The court “[D]e conclusions, doing of under the Judge, than one. judgment seven This appellate decision Felder, judicial the ar- is no novo so.” fact In or McConney, supra, 728 (quoted in II 8). at 1201 n. F.2d THE STANDARD OF REVIEW must decide In we reaching legal Before the substantive ad the officers had been “refused whether questions presented by appeal, we apartment, mother’s mittance” Griffin’s identify the correct of re- standard 33-565(g), meaning of when within principles straightfor- The basic view. the door with a they broke down familiar, here- but we have never ward question of law This is a “mixed” ram. applied pre- here tofore them issue fact, McConney, supra, 728 F.2d see sented. represents most trouble and thus “basic, of review inquiry kind of for standard judge’s findings trial some The determining primary, purposes. historical facts—facts deference, any, if should be accorded sense of recital of external events what narrators,” mixed credibility of such a of their Town to a trial court’s resolution consider, among things, Sain, other question, n. we send v. close (1963)— be more n. 9 L.Ed.2d 770 the issue to decided S.Ct. law, deferentially “clear- of fact ly are reviewed under the resembles one exigency is root- question The appellate or the mixed whether the court principles poli- in constitutional ed position court in a to render the decision questions, many such mixed cies. Like higher degree accuracy. Feld- requires to consider ab- resolution us er, supra, 548 at 61-63. doctrines, weigh underly- legal stract The decision whether the officers were considerations, policy and to balance ing whether, judged refused admittance— particular, competing legal interests. standard,7 re- objective an the lack of strike a requires that we its resolution knock sponse thirty seconds after the first two conflict- balance between sometimes constituted a constructive refusal safety law societal values—the part police— to admit fourth amend- officers and enforcement beyond inquiry necessarily goes well privacy interests. essential ment into we the historical facts. balance by this bal- question and difficult raised will competing strike between the interests ancing how much risk parties only consequences have reasonably expected assume can here, legal provide precedent but will society has disregarding the rules before rights litigants. affecting the of future ex- adopted circumscribe the to otherwise significant This is reason for de novo discretionary of their considerable ercise F.2d at McConney, supra, 728 review. authority carrying out their vital law 1201; States, 548 also Jones v. United see duties. enforcement 35, (D.C.1988). 40 of question This is a amount Moreover, factfinding answer. will where basic constitution searching implicated, al are a more liberties omitted). (footnotes 1205 Ac- 728 F.2d at may standard of review be warranted. Robinson, cord, 174 33-34, 23, 83 California, Ker v. 374 U.S. F.2d 580 (1963), 1623, 1629-30, L.Ed.2d 726 S.Ct. (en banc) (where are historical facts at n. 12. supra, 728 F.2d McConney, dispute, exigent question not recognized requirements We that the have exist, may police so that circumstances are 33-565(g) of rooted constitutional § warrant, legal is “a one of search without Williams, supra, 576 A.2d at values. See dimension”); see also constitutional 703. The knock and announce rule “serves 703; Williams, 576 A.2d at cf. protecting the important purpose of States, 367 A.2d Brooks her right privacy of in his or individual’s (D.C.1976). own home ...” Id.8 dealing the issue of here with circumstances,9 upon are called exigent McConney, the United States record, whether, Circuit, on this instead to decide Appeals Court of Ninth non-response to the offi- banc, of sitting judge’s held that en of the knocking in the middle cers’ exigent circumstances determination to admit constructive refusal complying constituted a with excused officers Nevertheless, considerations requirements of them. knock announce per- found McConney analogue of the court federal which U.S.C. 3109—the § equal pres- to the apply force novo re- suasive with 33-565(g) subject de § —was ent case. view. The court stated: Bustamante-Gamez, government explicitly states footnote F.2d 9.The 7. United States Cir.1973) (test argue of admit in this case for refusal “we do not to its brief that such as drugs possibility the circumstances were presence tance is whether of of person per a reasonable would convince exigent circum- their destruction created refused), had been mission to enter must be executed search warrant stances.” A 40 L.Ed.2d 416 U.S. S.Ct. issuance, see days of the date of within ten 41(e)(1), police Super.Ct.Crim.R. execut- day. the ninth ed this warrant on "protect[s] officers 8. statute encourag[es] unnecessary danger against safety.”

H9 is no invasion battering ram. This trivial III Aside privacy of those inside. THE THE LEGALITY OF likely is the terror that such action ENTRY FORCED where, here, instill, especially as it taken night, the effect of in the middle A. The “Knock and Announce” Statute. may deprive destroying the be to provides 33-565(g) Section as follows: person- apartment occupants of the open any outer or The officer break security. For at least al some house, door or of a inner window time, potential access of thieves and therein, house, anything part of a necessarily premises marauders if, warrant, notice of execute after enhanced. authority his he is refused purpose, every- affects So drastic admittance. dwelling, just uses the one who identical to language of the statute is drug suspected In the dealer. counterpart, 18 U.S.C. federal to Griffin’s was leased respectful and we therefore accord § charged mother,11 been who has not interpreting consideration to authorities occupied It least anything. was § presumptively innocent individ- three other days, “From the common earliest and sister and the brother uals—Griffin’s drastically authority of law limited the law child; none rela- infant of Griffin’s sister’s the door a house to break ram tives arrested. Use Miller, supra, effect an arrest.” dwelling down door of a will break 1194. Like the S.Ct. at feder as inevitably harm the innocent well almost statute, al thus “codifies tra suspected breaking the law. as those Anglo-American dition embedded in law intended, practical or not so Whether the and declares the reverence which law collective incon- effect is to inflict de facto right privacy attaches to an individual’s of which, in- persons innocent so venience to McConney, 728 supra, his house.” F.2d convenienced, will seem lot like collective 1198, Miller, quoting at 357 at U.S. liberty interests punishment.12 The which 313, Accordingly, at 78 S.Ct. 1198. 33- § 33-565(g) designed protect, and to § 565(g) generous should be accorded a con of require generous which construction rather a “grudging” struction than one. statute, when an significant even the 313, Miller, supra, at 78 at 357 U.S. S.Ct. and walks simply turns a handle officer 1197-98.10 door. v. through an unlocked See Sabbath States, 585, 589-90, 88 present 391 U.S. police the broke United (1968); 1755, 1757-59, 828 20 L.Ed.2d apartment with a S.Ct. down the ques- (1990). judge duly did not reach of The trial 10. We are mindful the reliance that government standing, has not society place achieving and the law and or- tion of Griffin was the enforcing agencies it in court. Since upon addressed crimi- der son, present apart- in the he was tenant’s since But nal law. insistence observance law appar- without procedural ment in the middle require- fair traditional mother, view, since is, objection his there ent long point from the best ments party-goer suggestion he was a mere is (as that end. calculated contribute that Lewis, supra), we reason to ex- see no Miller, 313, at 357 U.S. at 78 S.Ct. govern- sponte, plore, an issue which sua Indeed, hearing at the has not raised us. Griffin conceded ment court, he did not live there. the trial object standing however, government challenged 12.Obviously, his such does inconvenience entry, speculative police primarily legal punishment in the sense. constitute not 520, 537-38, ground might See, e.g., Wolfish, that he have been 99 Bell v. 441 U.S. 1861, 1873-74, (1979). his mother’s consent. See 60 447 without L.Ed.2d S.Ct. 542, States, government proves generally Lewis United 594 A.2d criteria v. Where - -, met, (D.C.1991), denied, 33-565(g) U.S. cert. have been § 545-46 set forth 1225, 1225, entry on individuals S.Ct. 117 L.Ed.2d 460 effects of a forced 112 S.Ct. 112 adverse Olson, 91, (1992); suspect do render v. U.S. than the Minnesota 495 99- other cf. 100, 1684, S.Ct. 109 L.Ed.2d 85 unlawful. 110 120 Pratter, to a 227, period of time is tantamount v. 230 sonable 465 F.2d James, (7th Cir.1972) (Stevens, J.); States v. admit. refusal to cf. Wood, 81, U.S.App.D.C. 279 86- Cir.), 999, (5th 1017 528 F.2d 87, 927, (1989). They are 879 F.2d 959, 382, 50 L.Ed.2d 326 429 97 S.Ct. U.S. ram team does its at their zenith when the Bonner, v. (1976); see also United States

work. 271, 273, 874 F.2d (1989). reasonable is not de A particular words however, statute, and in deter fined in the in this case are the which we must construe “Refusal mining final two: “refused admittance.” a refusal of admittance commonly rejection, defined as a a denial occurred, employ highly contextu courts Instr. of what is asked.” Board Public the circum analysis, examining all of al Cohen, 413 F.2d Cir. Bonner, supra, of the case. stances Spradling 1969). It is a volitional act. at 824.14 U.S.App.D.C. Deimeke, (Mo.1975). 528 S.W.2d entry “is not to be made A forced to be dis “Refusal” to admit up; good or legal by it turns it is bad what so; tinguished from “failure” to do change charac when it starts and does word, legislature used the latter could have ter from its success ... or evidence In the words of but selected the former. entry].” subsequent discovered [the Marshall, to refuse to do Chief Justice Brown v. United will,” something while to is “an act omitted); see (D.C.1991) (citations “may an act of inevitable fail to do it Mason, (9 Miller, supra, 78 S.Ct. necessity.” Taylor v. 357 U.S. Wheat.) 325, 344, in de saying 6 L.Ed. 101 goes 1197. “It entry and the termining the lawfulness of Nevertheless, government is not cause, may con we probable existence of obliged prove occupants explicit- the officers only cern ourselves with what ly “keep recently out!” We stated said to believe at the time had reason Williams, supra, Ker, supra, at 40 n. entry.” need not wait for the occu- original); (emphasis in at 1633 n. 12 pants affirmatively to refuse them admit- Newman, see also Commonwealth reasonably if infer tance can 441, 448-50, Pa. inactions of the occu- from the actions or and an (applying Ker in “knock constructively rule pants have been admittance; case). question these circum- refused under nounce” stances, police may .entry force their thus refused admittance officers had been delay. reasonably have they could turns on what they used the at the time (citations omitted). believed A de- at. ram,15 they discovered not on what respond within a rea- failure to liberate13 hours, early evening and the officers “heard in James did not use the word 13. The court "deliberate," with both refused admittance implicit sounds consistent but in our view it is in the object search.” of the of the and destruction in the statute. word "refused” U.S.App.D.C. F.2d at 825. at suggested that reason- "[a] 14. Some courts have I, James, supra, the trial ordinarily very have noted in Part brief.” su- 15.As we able time is 1007, 1017; Bonner, judge to view supra, that even if he were pra, intimated F.2d at insufficient, under the circum- as at 824-26. at made, however, stances, occupants to dress to enable the in cir- declarations were These door, "are allowed quite come to the the officers different from those here. cumstances judge, James, disagree as danger- me." We think it is the with officers had information that arbiter, police, impartial who premises, and not the fugitive the incident was on the ous daylight, the determination as to reasonable- and even so the FBI must make in broad occurred Brown, considerably longer at 1013. The 590 A.2d agents apparently ness. waited Cf. course, give appropriate judge may, consider- forcing entry police did in than the this before Bonner, any expertise which the officers demon- which then Chief ation to a case in case. subject, accord due spirited persuasive and he must Judge strate on Wald wrote a safety entry place weight of the officers. dissenting opinion, in the in his calculus took premises. on is apartment.16 mate business This once had entered the where, here, especially true as the bedroom night. B. The middle door, from the so is a considerable distance may suddenly individual awakened As Justice Harlan observed for the Court hear oral announcements not the officer’s Jones of a identifying apparent disturbers 1253, 1257, L.Ed.2d as peaceful night police officers armed (1958), imagine “it is difficult a more Indeed, a search warrant.18 occu- privacy night- severe invasion of than the pant’s first instinct —a reasonable one— private intrusion into a home.” The time Moreover, may be call 911. most citi- “ram team’s” forced in this took case clad 1:40 in manner zens are not at a.m. place at 1:40 a.m. strangers. opening the door suitable for require The law does not us to close our dressed, sufficiently If someone is not all rea- minds to facts which are known to all, dressing Finally, takes.time. for most Poulnot v. Dis- people. sonably intelligent bang- people by awakened or startled loud Columbia, trict morning, twenty to two (D.C.1992). may judicial no- thus take likely are condu- circumstances not to be that, night, people tice time of most prov- analysis or to cive rational swift bed, many are in If a asleep. decision-making. ident person banging awakened Moreover, case, present the offi- door, appropriate an immediate re- nothing suggesting any- sponse cers observed may least not be feasible.17 For at apartment was awake. Al- period, sleeper a brief like- the erstwhile though Christopher he ly too testified that to be bewildered to react. He or she on, possibility then the television Officer Sloan did hear focus demanding entry legiti- lights There those have no it. There were other on.19 II, however, government argues 16. The Part we must in footnote 7 to its sons stated in all, “many, brief that if not his resolution the ultimate review de novo time were awake at the the officers arrived. issue. Therefore, someone should have been able to 18. In the Officer Sloan testified respond to the officers’ knocks announce- "police,” Christopher fairly yelled quickly that he but Griffin ments if he This or she desired.” unsound; text, he did hear do so. Chris- contention is asserted that him as noted topher that Bill Griffin shouted "who is fruits cannot sustain claimed it,” legality. did not hear Sloan stated that he Officer judge having found both witnesses that. credible, that, basically appears under the recognized during it judge reality 17. The trial existing, easy, argument it was not either for conditions oral on the motion: those or for those outside inside mean, obviously, people sometimes won’t it, spoken at some distance. The to hear words asleep, ordinarily people but that’s the time effect, finding explicit judge to that made no And, know, asleep. you the he knocks on Brown, contrary. no See indication to time, door. How for much what’s reasonable (trier of supra, A.2d at 1021 n. fact to, know, somebody you get him to allow ordinarily attempt to reconcile the should out, up, try figure going to here? “What’s apparently credible witness- sworn accounts es, door,” Somebody’s knocking my get to testimony, undisputed accept credible dressed, or do whatever he needs do to to credibility only reconcilia- make choices where door? come answer the effected). tion cannot be house, your you’re asleep, you in You’re —I know, you happened ever don’t somebody has it to that government also contends in brief you’re knocks on the door while were covered with that because the windows asleep, you something kind of hear in the material,” reasonably "heavy could the officers something, you’re a distance. thinking Is it knock or keep light it, then, know, “wished infer that the you about they may "Oh, escaping indeed be and that again. yes, somebody’s knocking knock illegal activity.” see, engaged in Officer my get awake and up, door. Let's I better I better at go testified, however, know, "ap- that windows going Sloan see what’s on.” You did he something that peared with thing? to be covered kind of allow coming (Emphasis in." add- gave thoughtful apparent judge shield It is that ed). “heavy night or material” to The use of curtains and conscious consideration to the time of keep light entry out of can at which the forced occurred. For reá- daytime early Beyond that search warrant in the footsteps. no the events court, by evening21 upheld was war- had led the issuance the search officers, who reason to believe a half to earli- rant week and two weeks house, was someone in the announced er,20 activity all. suspicious there no was

authority approxi purpose waited breaking in. Id. mately one minute before C. How much time is reasonable? Viale, at 751. See States v. also United Since, determining in the offi- Cir.), (2d constructively cers were refused admit- 10 L.Ed.2d 199 tance, engage “highly in a contextual” we minutes). (1963)(delay None of one two analysis, see at page discussion comparable of these cases is comparison delay of approximately one, more police in which waited no thirty seconds in this case with shorter than middle longer periods take us in other cases can 21 A.L.R. night. See also Annotation: Although prior far. only so decisions (1974 Supp.1992). & Fed. provide guideposts, course some useful point in the decision of the Su- More matching” no more precise may be “case Newman, Pennsylvania in preme Court of in and announce” cases feasible “knock exe- In detectives supra. litigation. in than it is Fourth Amendment in the middle of the cuted a search warrant States, 597 A.2d See Gomez v. United an- They banged on the door and day. (D.C.1991). Nevertheless, note that we loudly police. were the nounced authority cited in which has been to us response about there was no within When only thirty held delay of seconds has been seconds, door twenty they broke suspicious sufficient the absence some sledge holding In on sev- hammer. police, activity following the arrival of the grounds entry was eral some other circumstance which the court unlawful, the stated: court as In those equivalent viewed thereto. twenty delay second Surely a mere upheld cases which forced was answering cannot constitute the door circumstance, without such a was support for a belief evidence longer considerably than here. waited (or in 18 U.S.C. being destroyed terms of admittance). example, a refusal For States v. Leicht Cir.1991), Ametrane,[22] delay a full nam, in which F.2d 370 minute, not find yet district court did ram to break use of a any exigent justifying upheld a.m. was circumstances down a at 6 proper no court, ramming approximately forceful made occurred Ame- out that pointed first The court a minute and a half after the officers tice. “might floor and far was on the second began announced trane themselves legitimate reasons activity attempting have had countless less destructive door.” taking a minute to answer the open a door. at 374. pry screen Although is doubt F.Supp. at it Woodring, 444 F.2d 749 result would obtain (9th Cir.1971), of a ful that a different in which execution made; "in the gov- purchase was all that he said was hardly as be characterized unusual. The that, "shortly” evening midnight.” The position avoid before word ernment’s seems to be which, by description occupants brief-writer. suspicion, of a residence added to the the the was them, evening subject up at some the a search unbeknownst to warrant, That someone was length midnight "open up let the before sheds their shades and unknown of time light anybody was awake in!" or no on whether sun shine little [or moon] a.m. thirteen a dark at 1:40 nine to judge government argues, 20.The and the days later. believed, drug apparently the that controlled evening "shortly purchase in the late Specifically, was made after sunset." “an hour half 21. probable midnight," it before and that made 444 F.2d occupants be awake at 1:40 a.m. that the fact, Gable, 276 day In United States ex rel. Ametrane v. was executed. the warrant (E.D.Pa.1967). F.Supp. 555 know at what time the Officer Strand did not

123 (1984), 970, 2342, 816 80 L.Ed.2d if been the first even Newman had on floor, Newman, too, was the second was executed on in which a search warrant lottery midnight, The fact that some shortly floor.... after the officers ob- easily destroyed room, paraphernalia does light in a the on basement [are] served justify suspension of the Fourth with the that odors associated knew lottery prosecutions. Amendment all drugs had detected com- production of been nights previous on basement 448, 429 Pa. at 798. Given the on; majority a when the was night-time context of held, by powerful dissent court over a applies reasoning of Newman a fortiori. Judge Jones, justi- the officers were by govern authorities relied breaking after half a fied in down door ment in which officers waited for DeLutis, In minute.23 United thirty distinguishable less than seconds are (1st Cir.1983), officers, F.2d 902 that, each, upon ground the common had knowing that the defendants entered suspicious there were additional circum a earlier with a their house short time justifying a stances reasonable belief informant, that the house was occu- part immediate officers that awake,24 pied, and that the residents were required. action In v. was Masiello United 904, twenty than id. at more U.S.App.D.C. 317 F.2d knocking on the door and seconds after (1963), example, “the announcing executing a sounds which them hear[d] indicated] search warrant. Id. at 908-09. See also sought the evidence the warrant Ruminer, 786 F.2d States destruction;” [might] process of [the] Cir.1986) (brief wait sufficient court, through (later speaking Judge Justice) where officers someone run out of the saw Burger, approved Chief bedroom).25 also note dis- grounds remand, See on narrow after an earlier tinguishing emphasizing this case and Bon- that close James cases will receive scrutiny. careful ner. Id. at 317 F.2d at 123. Davis,

In U.S.App. States 95, 98, (1979), D.C. offi warrant, D. The existence a dan- executing cers who were a search warrant evidence, ger destruction at 2:20 lights a.m. on in the observed house drugs between the connection which indicated that inside someone was weapons. awake; no response when there was in a recognized court is- This has seconds, thirty “[t]he of fifteen to signifies ... that a suance of warrant gained entry battering with a ram. judicial officer has made a determination Wood, 85-87, grounds to that there are reasonable be- 879 F.2d at DEA agent executed underlying lieve the information p.m. 2:55 search warrant at and waited reliability is true of sufficient warrant thirty knocking fifteen seconds after up announcing justify and timeliness to search entering; entry before Williams, knob, days.” supra, 576 A.2d at accomplished by turning the ten requirement breaking guards 704. The warrant down door. Unit Ciammitti, against ed searches based on no more than States F.2d 932- (6th Cir.1983), prior formed “officers’ conclusions court to “half home from the 23. The referred a minute” in its one of the defendants arrived at opinion, judge 720 F.2d at 933. The trial airport. The of the facts is court’s recitation found that officers “started to break the inconsistent with notion that having door down with a ram" after asleep; the house could have been pounded approximately the door for fifteen to immediately after informant left. arrived receiving response. seconds without at 932. questionable, reasoning 25.The of Ruminer is however, for the individual in the bedroom opinion DeLutis in does not reveal the running open the day could have been door. to time of when the warrant was executed. occurred, however, shortly The incident after 124 1987); Doering, v. 384 Bonner, States U.S.App. 277

search.” 1307, (W.D.Mich.1974). 274, govern- 1311 F.Supp. D.C. at F.2d at 825. 874 authorities, argues, upon ment based these Williams, at A.2d Relying on 576 likely present that in case it was the 701, that it com- government claims is the drugs apartment, and were in the trafficking in knowledge that those mon dispose them unless the would firearms, often use substances controlled dispatch. police moved with safety, of their in the interest own and that that, general, pos- in There doubt is no justified effecting in their the officers’ session of a warrant enhances delay. entry without further 33- authority Section to conduct search. Williams, however, police had been however, 565(g), presupposes the existence drugs, that, unlawful along with informed warrant, re- nevertheless of a search but weapons the house “there were several showing of admittance. quires of refusal an automatic and that a man armed with argument government’s Accordingly, the living next to gun room was seated simply proves too much. Whenever there Additionally, a Id. front window.” (or contraband) drugs are unlawful other spotted po- departing visitor who delay premises their officers house, yelling “police lice into the ran back been refused until after have There were no such Id. at 702. officers.” admittance, delay danger is a there Al- case. circumstances premises to de- persons will enable reiterated, “drugs though, recently as we Supreme potential As the stroy evidence. sinis- weapons go together” their explained in v. of Arizona State Court one, is a ter association close Marshall Bates, 561, 563, 747, P.2d Ariz. 89-CF-800, op. slip No. (en however, (1978) banc), 1992) 26, 8, (D.C. Jun. 1992 WL mere fact that this search warrant [t]he marks (citations quotation internal purpose was executed for discov omitted), of that unfortunate the existence ering necessarily does cre narcotics more, connection, cannot lend exigent justifying ate an circumstance government’s po- support to substantial Mendoza, entry. immediate State otherwise, then we hold sition. Were P.2d 104 Ariz. undermined to 33-565(g) would be § (1969), emphasized 144-45 this court inefficacy any search warrant point of that, itself, easy standing by destruc nar- distribution of involving alleged case tibility narcotics insuffi evidence Gomez, supra, cotics. See cause for offi provide cient reasonable Ohio, 890-91; Terry v. cers to announcement believe L.Ed.2d 889 S.Ct. frustrate purpose of their would (Harlan, J., concurring). search, therefore, relieve them of announcing identity their necessity of IV There must “substan purpose. be be tial to cause the evidence” CONCLUSION destroyed, irre lieve evidence sought, other spective of the evidence Special circum summarize. 13-1446(B)[26]would be wise A.R.S. § reasonable belief supporting a stances cases. nullity come a narcotics occupants’ that the part of the knocking and announce non-response Newman, Accord, supra, 429 Pa. at 446- A,2d delibera 798-99; pursuant ment § (D.D.C. entry almost justify te27 a forced F.Supp. will Rodriguez, 663 door, retreating persons from the analogue 33- servance is the Arizona 26. This statute occupant discovery 565(g). is stand- or their whatsoever, response making still in which 27. The fact situations drawing of. a shade followed or the back varied, in- conclusions are draw such clude, rapid retreat from the door. sounds of hearing footsteps example, direction, wrong running or their ob- his former court before explained for his In the immediately after their detection. bench, Supreme circumstances, however, to the Court ascension absence of such (now Justice) agree Judge pay Stevens society we price which [t]he required significant lapse” time is of such blunders repetition forestall “[a] free, that admittance was justify go a conclusion or accused shall is that the Pratter, F.2d at 233 supra, 465 seized as a refused. trial the evidence least at his Bustamante-Gamez, 13; may su- his home n. see also invasion of result of that (“an explicit refusal of pra, against 488 F.2d at 12 him. Otherwise not be used significant profession- amount lapse congressional requirement admittance or of a necessary have no search warrants time is if the officers in the execution of alism purpose of exigency”). accomplish This is be- its dual indicating might not facts liberty privacy of the home cause, light protecting the of the fundamental degree expertise ensuring high implicated these interests interests —and func- a vital performance resi- peak a door to a are at their when down, night— tion. especially at dence is broken construed, generously 33-565(g) must be (citations § Pratter, F.2d at 233 supra, 465 put to its government

and the must be omitted). proof. Pratter, simply agents turned into the p.m. and walked knob at 2:45 present hold that no In the we house, In the weapons drawn. defendant’s As refusal of admittance was shown. case, they down the door. present broke (in eloquently Judge Jones has so written morning. 1:40 in the The time was stronger for substantially was case which is, reversed, government than the and the Griffin’s conviction grant pages supra), see discussion remanded with directions case is suppress tangible evidence. motion to his fact, [officers], in occu- allowed [the [t]he So ordered. of one minute at pant] less than one half her that hour of the to answer dissenting: TERRY, Judge, I am that it Associate

front door. unable believe expect any reasonable to that this or appeal question presented have, have, could or would individual “re- arresting officers were the front door at 12:15 unlocked meaning of admittance” within fused group yelling pound- morning to a (1988)1 hence D.C.Code § strangers one half do so within entering —and forcibly justified Certainly no reasonable of one minute. warrant. execute their search apartment to sensibly ex- law enforcement should have precedent, by long-established Guided delay in pected that a 15 to 30 second requisite deference giving the consti- answering the door at that hour fact, uphold the I findings of court’s admittance. tuted a denial of motion to appellant’s denial trial court’s judgment and affirm suppress evidence (dis- Ciammitti, supra, 720 F.2d at take a my colleagues of conviction. Since (emphasis original). senting opinion) view, respectfully I dissent. different jury, guilty by a was found Griffin convic the reversal even of a misdemeanor guilt or inno unrelated to tion for reasons a.m., Curt 1:35 Officer approximately At Allen v. not come cost free. cence does Cf. members of and several other n. 19 Sloan 1228 & went to an Metropolitan Police cogently (D.C.1992). As Stevens so Justice (cita- may open or Annotation, break outer The officer 21 A.L.R.Fed. house, any part omitted). previously, the lack of of a noted door or window As inner tions therein, although house, in- night, anything is on response at to execute the of a warrant, side, support if, authority such a conclusion. after notice of his purpose, he is refused admittance. 33-565(g) provides: 1. D.C.Code 126 S.E., 822, (1989). considering a Street, Mellon to a search F.2d 824 execute refusal, parapherna- of constructive the courts drug

warrant for narcotics and claim engage analysis, in “a previous highly The contextual lia. warrant was based on a purchase examining at all the circumstances of late-night of narcotics case,” in- police to informant. As determine whether the same address done, went the search team ference was informant had reasonable. apartment. That to the side door of the re example A common of constructive and, windows, according to the door had no occupant’s respond failure to fusal is testimony, at the front of the windows request for police officer’s admittance. a heavy- a “covered with purpose his or her If the officer announces

type that no emanated material” so a authority pursuant search war hear from inside. The officers could not rant, respond occupant and the does not any coming apartment. sounds from the time, a the offi within reasonable door, knocked At the side Officer Sloan v. may forcibly enter. United cer States announced, “Police, loudly and a have 81, Wood, 86, F.2d U.S.App.D.C. 279 879 warrant, open up.” ten sec- search About 927, (1989). length The of time 932 response, passed and Offi- onds they may con must wait before knocking an- repeated cer Sloan as response a lack a denial strue waiting nouncement. After an additional “depends largely on factual de admittance receiving response, ten seconds without by the court.” terminations made trial force the officers used a ram to Davis, U.S.App.D.C. v. 199 States United way The total time be- elapsed in. 113, 677, (1979) (citation 95, 695 tween Officer initial knock and Sloan’s omitted), 967, 445 100 cert. U.S. approxi- search team’s forced 1659, (1980). 244 Al 64 L.Ed.2d S.Ct. mately thirty seconds. nothing in the feder though there is either long prescribing how al or the local statute apartment, Once inside the knocking after must wait appellant lying found Griffin on a sofa Masiello, announcing, 115 see living nearby room. On a coffee table 122, 58, U.S.App.D.C. 317 F.2d at lay plastic bag containing rock “a white ordinarily very time “is brief.” reasonable substance” turned crack which out 999, 1017 James, 528 v. F.2d United States placed cocaine. search team Griffin Cir.1976) omitted); see, (citation e.g., (5th bag arrest plastic under and seized Bonner, supra, 277 v. States United its contents. (elev 275, 874 F.2d at 826 U.S.App.D.C. at seconds); v. twelve United States en to II (6th (thir Ciamitti, Cir.1983) 720 F.2d 927 “knock and an District of Columbia 970, seconds), denied, 466 104 ty statute, nounce” D.C.Code § (1984); 80 816 L.Ed.2d United S.Ct. (1988), is to its counter identical federal F.2d Cir. Wysong, v. 528 345 States (1988). part, 3109 v. 18 U.S.C. Williams seconds); 1976) (five to ten United States (D.C. States, 703 576 United (9th Cir.1971) 749 Woodring, 444 F.2d v. 1990). construed The federal courts have Masiello, minute); (one statutory “con language to allow for a (ten F.2d U.S.App.D.C. refusal” of admittance. structive “[T]he knock, plus the first thirty seconds after restrict phrase ‘refused admittance’ is not twenty after second ten to an affirmative refusal.” Masiello ed knock). U.S.App.D.C. arguments, this considering Griffin’s F.2d Thus government, as if can court must afford may forcibly dwelling enter legitimate all inferences from the appellee, or inaction reasonably infer from the action have, effect, testimony and uncontroverted facts of the “in record, affirm the court’s States been refused admittance.” United 271, 273, suppress if it is Bonner, 874 denial of motion Specifically, search supportable related to the warrant. under reasonable view Rorie, a time of E.g., the evidence. 1:35 a.m. was drug (D.C.1986); expect reasonably 518 A.2d officers could apart- Covington, might transactions occur [the (D.C.1978); States, Moreover, heavy Brooks v. that a United the fact ment].” (D.C.1976). Thus the the front windows material covered findings upheld un- court’s must be factual rea- light escaping from could prevented clearly E.g., less Law- erroneous. that an the occu- sonably sustain inference rence United in only engaged but pants awake were 17-305(a) (D.C.1989); see D.C.Code § for preparing drugs activity, illicit such as that the occu- sale. Thus inference likely support- is pants awake were be In this the court on four facts case relied view of the evi- able under reasonable determining en- in that officer’s forced dence. try (1) permissible: was Officer Sloan in knocked “not once but a loud man- twice favor- factor be considered as Another ner,” (2) approximately the officers waited entry possible “immi- ing a is the forcible thirty forcing entry, seconds before nent destruction evidence.” Williams sup- there information in the affidavit was (cita- States, supra, A.2d at drugs

porting the search warrant omitted); accord, e.g., tion recently apartment been sold in the Here the supra, 528 F.2d at 348. Wysong, (4) heavy midnight,” “around materi- acting authority of under the officers were windows, al covered the front “which drugs, and were a search warrant closing suggest people keep- would out and believing drugs justified in therefore seeing ing people if it was inon in apartment. were there, seeing going what was inside.” Wood, supra, facts, The held that court these viewed the circum- 933. Under combination, placed the officers within “a find it reason- the trial court could stances certain zone of conclud- reasonableness” expect that able for the officers to constructively had been re- try drugs occupants might dispose fused admittance. upon being told that the were about Griffin contends that the thirty- to enter and conduct a search. between initial and the knock forced initial knock between the second interval unreasonably was an short time to occupants entry gave forced and the response it was allow for a because 1:35 enough respond time to officers’ a.m., occupants time when the admittance, giving request apartment probably asleep. most dispose opportunity to them an agree very hour makes this late drugs. case, colleagues my a close I think but Finally, fact that Officer Sloan give weight. it too majority much purpose gave of his knocked and notice found, in light trial court of all the rele- once, twice, than before authority rather to, including, vant but limited factors— apart- forcibly entered the the search team night the time of the forced —that ment another factor to be considered. is reasonable, ignore we cannot knocking Because the officer was finding there overturn that because is evi- than, say, rather of an support it. The hour at dence to which house, in- reasonably three-story one could police officers execute a search warrant and announcements fer that the knocks deciding surely a factor to be considered premises. anywhere inside were audible entry, it the reasonableness Likewise, to infer that thir- it is reasonable Nor, only factor. just surely not the as time ample amount of ty seconds were dispositive. of this is it facts dwelling of this brief, response within a points to elicit a out in government As the circumstances, the lack of a these search size. In “the time of when the took in- occupants after two reasonably response place was tied to information requests knocking two stances of loud reasonably could lead admittance de-

officers to believe the

liberately ignoring requests. factors, whole,

All as a of these viewed ruling that

support the trial court’s within certain zone

officers were “a believing they had been

reasonableness”

constructively refused admittance breaking justified in

they were therefore

down the door with hold, therefore, there

ram. and an-

was no violation of the “knock statute, 33-565(g).

nounce” D.C.Code § otherwise, majority concludes

Because

I must dissent. AREA

WASHINGTON METROPOLITAN AUTHORITY, Appellant,

TRANSIT COMPANY, Appellee. L. TEER

NELLO

No. 90-SP-1516. Appeals.

District of Columbia Court

Argued June

Decided Dec.

Case Details

Case Name: Griffin v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Dec 18, 1992

Citation: 618 A.2d 114

Docket Number: 90-CM-531

Court Abbreviation: D.C.