Oliver v. United States

STEADMAN, Before FERREN GALLAGHER, Judges, and Senior Associate Judge. Judge

Opinion by court Associate for the STEADMAN. Judge

Dissenting opinion Associate p. FERREN at 1173.

STEADMAN, Judge: Associate Appellant challenges the warrantless home resulted into her which conclude, kidnapped baby. of a We retrieval ruling, that as reflected in the trial court’s justi- were and seizure by emergency and hence fied circumstances lawful under the Fourth Amendment. kidnapped of the as the identification ap- baby sufficiently the taint attenuated illegal pellant’s seizure to make conceded appellant’s subsequent confession admissible appel- Accordingly, we affirm evidence. kidnap- lant’s conviction offense ping.1

I. Facts Procedure Monday, 1:15 approximately p.m., At Braxton, October Charlotte duty the boarder nursing assistant on Hospital, baby2 nursery at the General D.C. that an from lunch and noticed returned who re- babies are abandoned babies Appellant was to a term of three to Boarder sentenced five-year period years, although ready medically nine followed hospitals main at probation. years supervised Two of the term of released. suspended, and release were work incarceration time to be served. recommended for the had said she day, missing. previous eighteen-day-old baby boy was Ms. lunch, “Karen,” her labor induced. going to have a first- was When she had left had become volunteer, Washington explained that she and Cor- time and Anna Denkins story when she Benjamin, suspicious nell lunch-hour volunteers day again earlier Guard, spoke watching the D.C. National had been appellant had told her appellant had nursery. in the Braxton informed the babies a.m., but had baby at 11:00 leaving for delivered the charge the nurse in that she was immediately because brought him home normally lunch. a member of the While Hospital. nursery, kidnapping at D.C. General the all the hospital staff was around nursery by the three volunteers had left the 23, an midnight on October near Sometime lunch and the time Braxton returned from consisting of Lieutenant investigative team nursery that only person present in the Hammon, Sonja Harper, Biglow, Detective time was another volunteer. Anna Denkins brought and Detective Jones she could appellant’s home to see whether Renager partner and his Detective Lee “Karen,” nursery the apparent identify appellant as responded to a radio run for the that told the officers investigation on volunteer.4 Denkins kidnapping. Their focused shorter, heavier, lighter- Oliver, appellant was appellant, after Detective Ver- Lisa the “Karen” and was not telephone complected from a than non received a call Jones remembered volun- evening.3 with whom she Washington later in the Ms. woman Ms. appel- officers left teering. Denkins and the Washington told the detective that she had hour, however, they telephone home. Within the spoken appellant with on the lant’s had given police by hospital October 23 and that she Ethel Haw- on Information to the kins, worker, hospital might phone social also and ad- given appellant's number them investigation caused the officers to focus their on Although she testified that dress at that time. although appellant, it from tire record is unclear of their conversation had taken notes precisely police informa- when the obtained this 23rd, these notes were never with her on the suppression hearing, At the Detective Lee tion. by in evi- other witnesses or admitted described dence, testified: they whether we do not know for sure so 24th, my On the office received information by part other of the case file reviewed were hospital, Ms. Haw- from a social worker investigative team. members of the that she had kins. Ms. Hawkins indicated however, stipulated, parties that Defense Friday prior to the talked to Ms. Oliver the by police report prepared 1 was a Exhibit No. October, point Oliver at which Ms. 23rd indicated that she had department after he had interviewed detective [given] baby birth to typed report Hawkins on October 23. Ms. had aban- on October 4 of 1989. And she explains lead was obtained "[t]he that first baby. in the doned the And while she was Hawkins,” stoiy that Ms. discusses the Ethel gave hospital hospital, a fictitious she detective, gives appel- relayed Hawkins name. address, cross-examined, and then concludes explained lant’s name and Detective Lee When thought description the call from Hawkins had of "Karen.” appellant that he Ms. did not fit the police 23 but been received on October although appellant nor the Accordingly, neither did not receive the information that his office report explained this whether has during day on October 24. until sometime was, not, re- the case file contained in or was trial, during Ms. Hawkins testified that At team, investigative the members of viewed appellant with on October she conversation that, report, given the format it is agreed hospital for an to review the records Thus, appears the file. it it was in baby 4 and meet bom on October abandoned Washington Haw- and Mrs. Ms. information both appellant what she on October 23 to discuss police officers to focus gave caused the kins explained in the Hawkins had found. Ms. appellant. investigation on their morning appellant called her to on October appointment. By the time change the time of suppression hear- testified at the 4. Detective Lee however, called, had al- Ms. Hawkins gone duty or 7:00 ing off at 6:30 that he had records, ready hospital so she told checked the been he had not p.m., October 23 and that on had no record of aban- that she had taken Den- present the other officers suggested 4 and born on October doned identify appellant later kins to Presumably, try hospital. that she another evening. the record whether It is not clear from police discovery in their subse- was related to the brother, member of appellant, her or another quent with Ms. Hawkins. interview on to the entries examination, household consented Oliver During Ms. Hawkins voir dire her at October had interviewed testified that appel- speak baby.5 him that wanted attempt idеntify returned to identify baby. could not explained Denkins also Oliver lant. Mr. baby missing from the explained that the She basement, then he called in the reddish, hair, nursery tapered had unusual Ap- there. her that the were down to appellant’s home had

whereas the put responded, pellant “Should browner, hair. Before Denkins and curlier walked down clothes?”8 Mr. Oliver home, ap- officers left basement, and the officers stairs into the pellant that Dr. had deliv- mentioned Worth6 behind him.9 followed day University ered her at Howard Hospital. appel- then confronted Detective Jenkins the information he had obtained morning, Rufus A. lant with

The next Detective Jen- kins, kidnap- Jr. became involved with University Hospital: that hos- from Howard ping investigation. reviewing the case After deliv- her claim she had pital records refuted reports gathered leads on file and day, baby previous and ered a there 23,7 Hospi- he to D.C. General October went hospital on the no doctor named “Worth” was baby’s footprint. After- tal and obtained the explana- Appellant offered no further staff. ward, University Hospi- he went to Howard distraught manner re- in a tion and instead verify appellant tal to the information that that, baby not been sponded because the had previous night. given the officers the had night, she did not previous identified the only Detective Jenkins discover that Not did just not leave her why police did know was on the staff of no doctor named “Worth” appellant then told alone. Detective Jenkins University Hospital, he dis- but also Howard Robbery to the had to come down she patient appellant had not been a covered that investigation. During Branch for further years. hospital past five at the within discussion, fol- upstairs, this Mr. Oliver went Bolten and Ser- He contacted Lieutenant had of the officers. Mr. Oliver lowed one Carl, geant other members of his investi- up picked that he his told the officers earlier team, jointly they decided to in- gative and day before. The at D.C. General the appellant again. once sister terview go he had to officer told Mr. Oliver that Bolten, Jenkins, and Detective Lieutenant Robbery he had Branch too because appel- the door of Sergeant knocked on Carl day at D.C. picked up sister the before his a.m., on approximately home at 11:00 lant’s might be an Hospital and therefore General brother, Lamard Ol- Appellant’s 24. October kidnapping. iver, door, accessory to the officers told answered the and the you.’ him to have us come on And she told the record whether these It is not clear from remand, midnight. following our see after For down.” In its order visits occurred before or 9, infra, apparently purposes opinion, not to court credited of this and in order note the trial facts, entry at issue on appellant’s these visits with the version of the confuse and Mr. Oliver's whether, occurring refer both as on although entirely October we will in the it clear view, October 23. appellant not have also trial court’s Jenkins testified to. said what Detective Although appel- Jenkins testified that Detective had told the officers that Dr. Worth 22, 1994, lant had April record to we remanded the 9.On day, baby her earlier that he also stat- delivered ed, supplemental findings of fact the trial court for spelling that we had was W-i-r-t. “Now the regarding possibility and of law conclusions from, spelling know.” came I don’t Where police officers’ October that the was consensual. home and bedroom reports findings were not supplemental the case file and 7. Because The trial court issued May of the witnesses admitted into evidence and none on and conclusions of law fact consensual, they reports information the holding testified as to what and incor- that the contained, precisely know we do not reviewed We do not reach porated them in the record. acquired from what information these officers We See note do note this issue. infra. investigation. previous day's findings respects, trial court’s are in minor than, with, detailed the rec- inconsistent or less importаnt it is ord. Where we believe testimony appellant and her 8. This was the accuracy completeness our to base sup- sake of Jenkins testified brother. Detective record, than presentation on the rather factual hearing down- pression that Mr. Oliver "called ‘Lisa, here, findings, stairs, we do so. they the trial court's would like to talk

H63 room, interrogation Appellant, gown Mr. left the wearing who had been When Oliver housecoat, possibly eyes. and dressed appellant herself and both he and had tears their baby the two officers waited on the past while Oliver Detectives Jenkins Mr. walked other After side of the room. Hardisty, told them dressed, Detective Jenkins escorted her out- ready to talk. placed side and her his unmarked interroga- Detective entered Jenkins baby car. Lieutenant Bolten took the Hardisty, room consoled tion with Detective placed him in another unmarked car appellant, asked her whether she was appellant protested with Mr. Oliver. When Appellant willing give re- a statement. her, go that she wanted the First, sponded affirmatively. orally she ad- explained they Detective were Jenkins D.C. taking mitted General taking hospital for identifica- Hospital, agreed to make a and then she tion and would returned to began written statement. Detective Jenkins not identified. he was four-page typing appellant’s statement at Robbery When reached the Branch at signed p.m. appellant both 2:15 He and noon, approximately Detective Jenkins took p.m. completed at 2:45 statement interrogation to a small He room. suppression hearing. The trial held a court rights; advised her of her Miranda10 howev- During hearing several witnesses for er, he that she told her was under arrest. prosecution both the and the testi- defense Detective then appellant Jenkins confronted court fied. The issues for the were main again with the fact that the records at How- (1) voluntarily whether Ms. Oliver went University Hospital ard could not confirm (2) station; police baby was the the seized given the regarding information she had him Amendment; (3) violation of Fourth the the baby’s Appellant responded the birth. suppressed confession be as the fruit should actually gone Upper she had labor at the (4) seizure; poisonous validity of a the of Cardozo and that the doctor Clinic there had lineup. The trial court found that Ms. Hospital. referred to Providence her Detec- voluntarily go to the police Oliver did not tive called Providence Hospital, Jenkins station, gov- but rather was detained. The appellant’s delivery. there was no record of police at the time the ernment conceded that information, ap- When confronted with this police took Ms. to the station there Oliver pellant told Detective Jenkins that had she arrest. was no cause for The trial George’s at Prince delivered the Gener- court was inclined to rule that the seizure of Hospital. al Detective While Jenkins was on lawful, ruling final the child was but reserved George’s the telephone with Prince General ruling on until later. The court also reserved Hospital, Lieutenant Bolten called tell him legality lineup and the the confession of personnel that medical at D.C. General Hos- of an unlawful arrest product based on the pital baby. had identified Soon after- However, until later. the court denied the

ward, George’s Hospital Prince General con- suppression lineup suggestiv- based on of the . given firmed that had not birth Finally, suppressed the ity. court state- there. police sta- ments made Oliver Ms. p.m., 1:00 Between 12:30 and Detective prior tion confession. Jenkins told had identified, parties, her Mi- briefing by been her of After the trial readvised randa aspects suppres- of the rights court ruled on those waived—and —which hour, motion for further con- placed under arrest. For the next sion it had reserved her officers, concluded that questioned by police she several sideration. The court reasonable law- make a seizure of the encouraged who her to statement. it, ful, relying, on thе privately boy- we understand Appellant then met with her as exigent presented. Based on minutes circumstances friend for ten to fifteen and after- brother, Oliver, missing of the Mr. the identification ward met her hospital, the court concluded approximately time. child from the the same amount of Arizona, v. 384 U.S. Miranda Arizona, Mincey v. police were informed of this that when (1978) 2408, 2412, (quot- they had cause to ar- 57 L.Ed.2d information court, States, 347, 357, According ing rest Ms. Ms. Oliver. Katz v. United (1967)). acqui- followed the Oliver’s confession 19 L.Ed.2d sition of that additional information and require exception to the warrant made after she had been advised of One

been “exigent concluded that circumstances” where rights. Miranda The court ment is independent such significant presents compelling event factors “there was situation possi- delayed. the initial unlawful seizure which made United States cannot (D.C.1983). Booth, taking alleged confession.” ble the 455 A.2d exception the seizure of the child was lawful and involves Although normally Since leading offender, likely therefore the additional evidence or pursuit” “hot of a known evidence, Ms. Oliver’s continued detention was not of such one subset destruction activity, product any circumstances, unlawful as the “emer exigent known suppress court denied the defense motion to acknowledges the need to gency” exception, missing baby, the identification of the person premises who is protect a inside confession, lineup and the identifications peril. Earle reasonably to be in believed appellant. (D.C. 1258, 1263 Booth, 1992); at 1354-55. supra 455 A.2d Emergency Exception II. emergency exception allows offi Requirement Warrant a warrantless and search cers to make reasonably person that a right people se believe “The to be houses, papers, and in need of immediate aid. persons, cure in their within the home is effects, against Mincey, supra, unreasonable searches 437 U.S. at seizures, preserve life protect shall not be violated.” U.S. Const. need to 2413. “The ‘physi justifiсation injury “It is axiomatic that the is for IV. or avoid serious Amend. against entry illegal cal of the home is the chief evil be otherwise absent what would Amendment wording Wayne of the Fourth exigency emergency.” which v. United ” Wisconsin, 234, 241, States, 466 U.S. U.S.App.D.C. is directed.’ Welsh v. 318 F.2d 115 2096, denied, 740, 748, 104 2091, 205, J.), Burger, 80 L.Ed.2d 732 (opinion S.Ct. 212 of cert. (1984) 860, 125, v. (quoting States United 11 86 United 375 84 S.Ct. L.Ed.2d U.S. Court, 297, 313, (1963), 407 92 Mincey, supra, District quoted States in 437 U.S. (1972)). 2125, 2134, 752 392-93, 32 L.Ed.2d S.Ct. at 2413. “The Fourth 98 S.Ct. presumes that require police Amendment law war- Fourth Amendment does not inside a home if delay investigation rantless searches and seizures of an in the course exigent absent circum gravely endanger are unreasonable their lives or do so would York, 573, Warden, Payton Maryland v. New 445 U.S. stances. others.” the lives of 1371, 1380, 1382, 294, 586, 590, 100 63 Penitentiary Hayden, S.Ct. 387 U.S. 298- v. (1980). put, 1642, 1645-46, 99, searches L.Ed.2d 639 Otherwise 18 L.Ed.2d 782 87 S.Ct. “ (1967). per a warrant ‘are se and seizures without Amend under the Fourth unreasonable in court here manifested specifically es The trial subject only to a few

ment — ruling11 the warrantless en- exceptions.’” pretrial its tablished and well-delineated evidence, entry consensual. government that the had been appeal, realized that we 11. On Bustamonte, 218, emergency exception might agree 412 U.S. See Schneckloth v. entry 219, 2041, 2043, (1973) justified and seizure. the warrantless that, accordingly argued if we had government (individual requirement the warrant can waive emergency application ex- about of doubts seizure); consenting v. by to a search and Judd ception, should be allowed States, U.S.App.D.C. 190 F.2d United 89 justified argue seizure. that consent 649, (1951) (same). agree we with the Since 651 government’s We remanded the record at original en- determination that the trial court's findings note suggestion as to consent. See nonconsensual, justified try, under 9, supra. doctrine, emergency not reach the con- we need find, as on remand did indeed The trial court note, however, as hereinafter sent issue. We do admitting disputed ground an alternate

1165 entry is neces- immediate of the to believe try of the and the seizure bodily danger in sary someone emergency excep to assist justified under this were Second, the premises. requirement. must harm inside to the warrant We tion carefully to achieve entry must be tailored factual determinations accept the trial court’s no more objective, can do the officer unless relating exigent circumstances reasonably necessary to ascertain than is clearly Derrington v. United erroneous. assistance, (D.C.), is need States, whether someone A.2d 1323 recall 488 Final- (D.C.1985), denied, provide that assistance. and then 509 A.2d 605 mandate pri- motivated denied, ly, entry must not be 486 U.S. cert. search, (1988). or to However, intent to arrest marily appellate 100 L.Ed.2d genuine investigate a by an intent to ... is limited to but “deference to the trial court Booth, emergency to render assistance. supra, findings.” factual 455 A.2d its Harris, 5; at 1355 n. United States (citation footnotes omit- Id. at 1355-56 (D.C.1993); States v. A.2d United ted). (D.C.) (en Minick, 455 A.2d 880 n. 6 require each of those We examine denied, banc), cert. by the here as found ments under the facts being “Facts 78 L.Ed.2d court, review keeping “[i]n in mind that trial are, however, they must be exam what . denying a motion ing a trial court order sequence context and in which ined infer all reasonable suppress, the facts and States, Washington they occur.” v. United in favor of must be viewed ences therefrom (D.C.1991). ‍​​​‌​‌​‌‌​​‌‌​​​​​‌‌‌‌‌‌‌‌​‌‌‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‍A.2d ulti “[T]he ruling.” Peay v. sustaining trial court exigent mate determination as to whether (D.C. States, A.2d United justified a warrantless circumstances 1991) banc). (en keep in mind the We also law, remains a conclusion of which we decide Supreme Court repeated of the admonition Harris, supra, de novo.” the Fourth under determinations Thus, exigent circum subset “ probabilities. These ‘deal with Amendment exception exception emergency stances technical; they are the factual and are not ultimately de novo with due also reviewed everyday life on practical considerations findings. factual deference to the trial court’s men, legal prudent reasonable and which ” Gates, technicians, act.’ Illinois appli principles governing the 2317,2328, 213, 231, 103 76 L.Ed.2d emergency exception as inter cation of the (1983) Brinegar v. (quoting preted prior case law the District 1302, 1310, 160, 175, 93 338 U.S. Booth, supra, in 455 forth Columbia were set (1949)). L.Ed. 1879 entry in an A.2d at 1351. Warrantless may “emergency” requiring preventive action Specifically, person permitted by exception if a be from [pjrobable cause does not emanate premises reasonably inside the believed courtroom, library aor a sterile antiseptic danger though in even no crime has nec be pristine it a adytum, nor is sacrosanct at 1354.12 essarily been committed. Id. vacuum,” Bell v. concept in a “philosophical satisfy must met to Three criteria be 386, 383, States, U.S.App.D.C. 102 United emergency doctrine. requirements of the 82, (1958), it re- rather 85 but 254 F.2d “every day analysis of pragmatic First, quires a police officer must have men, facts, prudent reasonable and cause, life on which specific, articulable based on evidence, standers, indicated, and to secure identified entry, nature of the nonviolent very exploration, or strictly suspects; at least close to facilitate not consensual it is not that, assessing application suspi- verify in is relevant mere of evidence obtainment emergency This is not a case doctrine. Washington, supra, at 170. cions.” home's front police battered down the where the these, pursuit and destruction hot Two of night. in the middle of the and, door evidence, protecting person not involve do exception, lesser although falling are within exception emergency is a subset of the 12. The protecting saving emergency situations than requirement. exception exigency to the warrant person. Earle, purpose of supra, 1263. "The 612 A.2d at officers, by- protect exigency exception is to 1166 arrest, “probable which cause” is the legal Brinegar act.” v. five technicians 160, 175, language. traditional 338 U.S. S.Ct. (1949) 1302, 1310, 93 L.Ed. 1879 precisely turn to examine We now Davis, U.S.App.D.C. United States they arrived at the officers knew when what “ (1972).

400, 402, 819, 458 F.2d ‘[T]he 24. Detective appellant’s home on October evidence thus collected must be seen and hearing suppression Jenkins tеstified at the weighed library analysis by terms of members of his investi that he and the other scholars, but as understood those versed (Lieutenant Sergeant Bolten and gative team ” Gates, in the field of law enforcement.’ Carl) to interview had decided supra, at at 2329 462 U.S. S.Ct. discovered, they on the third time when Cortez, (quoting United States v. morning that the information of October 411, 418, 690, 695, day’s given previous appellant had (1981)). Likewise, we are mindful that “the (Lieutenant investigative Biglow and team are not to [the officer] circumstances before Jones) about the Detectives Hammon singly; rather be dissected and viewed at birth of the could not be confirmed must be considered as a whole.” United University Hospital. Detective Jen Howard Hall, U.S.App.D.C. States v. that, in when he became kins also testified totality F.2d “[T]he kidnapping investigation on volved with the picture circumstances —the whole file, includ he reviewed the case —must October Cortez, supra, taken into account.” gathered the ing reports of the leads at 694. As one court has file was previous day.13 Although the case singly noted these and cir “[v]iewed [facts Detective not introduced into evidence and dispositive, yet not be when cumstances] file’s con testified as to the Jenkins never Davis, puzzle may fit.” viewed unison assume, tents, pursuant may reasonably we U.S.App.D.C. F.2d at supra, 147 (1) Peay, supra, that contained the file appel Washington that information from Ms. story unlikely lant had told her the A. Probable Cause at 11:00 had delivered the a.m., brought him had begin by examining concept on October 23 but We immediately kidnapping applica home because of the “probable cause” as it relates to the (2) Hospital; information con General emergency tion of the doctrine. D.C. called text, mean from Ms. Hawkins that interpret “probable cause” to we 20, explaining that she had grounds to believe” —a formula her on October “reasonable given on October and had says Supreme we think the birth to tion that what him baby but now wanted in Min abandoned the Court meant “reasonаble belief’ back, 2413; hospital contained cey, but that the records supra, 437 U.S. at 98 S.Ct. at on of an born a formulation that reflects the need for solid no information abandoned (3) date; cause, report the officers’ first warranting probable facts not mere (as Ohio, suspicion Terry 392 visit to home October reasonable 1868, (1968)); identify appellant 1, Denkins failed to volunteer (4) “Karen”; officers’ report a from the commonly a that is used to mean as formulation cause, appellant’s home on October second visit to see W.R. LaFave, Search (2d 1987) 23, identify baby; 6.6(a), Denkins failed to the § 698-99 ed. when and SEIZURE (5) appellant information that had grounds to believe that and the (equating “reasonable 23, visits police during the October emergency existed” with a told the some kind of baby earlier that a that she had delivered “probable requirement”); cause and formu day University Hospital attended perceived a emer at Howard lation that fits well with by Dr. prospee- in a basis for Worth.14 gency, contrast with Jenkins, imputable to Detective supra and thus was at 2-4 & n. 3. See Bolten, through Sergeant Carl Lieutenant if all information was not contained Even this knowledge In re the collective doctrine. See file, received other in the case officers it all had been M.E.B., 1123, (D.C.1993), cert. 1128-33 investigation working kidnapping 24, scene, give morning gunshots, help cries for will On the of October Detective or Hospital cause, University specific, went to Howard police “probable Jenkins based on verify appellant’s explanation baby’s facts, that to believe immediate articulable hospital He that em- birth. discovered in dan- necessary is to assist someone ployed no doctor named “Worth” and that Booth, harm,” supra, A.2d bodily ger of patient hospi- had a not been However, investigations kidnapping at 1355. years. discovery the past tal within five The unusually compelling circumstances present exculpato- a provided had false judge emergency analysis.15 As trial ry police investigators statement dra- to the noted, kidnap- suspected police seizure of a matically whole The changed equation. infant, victim, helpless not of all a ping least story collapse introduced a new drugs prop- or other is unlike seizure urgency. element of It would seem remarka- life, free- erty evidentiary purposes. a ble that new mother would lie about where being and future of a human is at stake. dom gave birth. The new information seemed she victim, being adequate- presently even if strange pattern to confirm the of conduct safe, any moment ly eared for could Washington Haw- reported Ms. and Ms. point beyond to a harmed or be absconded be grounds kins. Now were there reasonable discovery. particular An in thus infant coxxld baby kidnapped believe was the beyond legal protections to placed be baby; need further impelling was for custody in its future and treatment ensure baby. access to mother and Since unlike an noted, po- the trial court best interests. As kidnap baby speak older victim the could obligation protect lice officers have an itself, identify through identification other duty beings gi’eater this is even human means had to the ultimate be determinative helpless infant is when a and defenseless kidnapping factor whether the short, may kidnap victim involved. victim; is, which could convert endangered. inherently deemed certainty. cause into identify previous night

The failure jurisdictions these reflected Other as “Karen” or kidnapping holding unique qualities of abrogate analysis. boarder does exigent emergency kidnapping create Sergeant Denkins had no reason whatever circumstances, without direct evidence even acquaintance think at the earlier time of her bodily See a threat of harm victim. with either or the would Karen that she (Colo. Thiret, 193, People P.2d v. upon positive be called to make identifica- banc) 1984) (en (finding exigent circumstance Fur- tion of either of them at a later time. “three-year-old recently child when thermore, given shifting uncertain abducted, well have been her life could been personnel nursery, not the Karen was en- danger, and wei’e the Sheridan only might individual who have absconded her where- gaged in efforts to determine with the infant. State, abouts”); 578 N.E.2d Benefiel (Ind.1991) (finding emergency situation typical It true that this case is unlike the rape vic- year-old kidnapping and emergency exception where a 17 blood denied, - U.S. -, repeatedly Supreme warned Court has 130 L.Ed.2d 15. The Furthermore, the offense under investi- that the seriousness of although testimony at creating an emer- gation cannot itself be a factor suppression hearing prove failed gency justifying warrantless search. Ms. had received the information from Louisiana, 17, 21, 105 Thompson Hawkins on we are October satisfied (1984); Welsh v. 83 L.Ed.2d S.Ct. Wisconsin, testimony at Defense both Ms. Hawkins’ trial and supra Exhibit Number see note established (1984); Payton, supra, 445 L.Ed.2d 732 investigation involved in the 1378-82; 583-90, Mincey, at at U.S. 23. had obtained this information on October 394, Our supra, U.S. 437 States, 896, 902 n. Martin v. 567 A.2d ongoing the the risk to here rests on decision (D.C. 1989) testimony may (undisputed trial be 16 of the crime. created the nature victim presented suppres with evidence considered type situation prohibition is aimed not at this of hearing); Rushing 381 A.2d v. United sion 252, investigations no of crimes which rather at but (D.C. (same). 1977) 257 the longer the lives of victims. threaten 1168 — denied, matching they had seen a child ment where danger), in cert.

tim’s life is (1992); -, 2971, missing boy. description State L.Ed.2d 591 of (Okla.Crim. State, (R.I.1988). Collins, Johnson v. 554 P.2d exigent in kid App.) (finding circumstances court found: saving napping “hopes in of a human case discovery possible pres- that the that the elderly police suspected that man life” when infant suspect’s apartment of an ence in a being during trunk an held in a automobile snatching kidnapping of a child or victim denied, days), cold cert. circum- emergency exigent or created (1976); People v. entry into permitting stance a warrantless Diaz, 170 A.D.2d 566 N.Y.S.2d police expect the apartment.... said To (N.Y.App.Div.1991)(finding emergency situa infant re- a warrant while the to secure allegedly kidnapped four- tion when father worse, or, apartment in the mained alone “safety year-old of the child son because by a confederate was removed therefrom denied, appeal potentially jeopardy”), in was credulity. of defendant strains N.E.2d 79 N.Y.2d 580 N.Y.S.2d (1992). here, unreasonable Id. at 652. Likewise it is in the expect police to leave the victim neighboring jurisdic A recent case our captor the officers obtain control of the while report that a man and woman tion involved a victim is true even if the a warrant. This missing eighteen Burks had been hours. being-well person’s A apparently is treated. State, Md.App. 624 A.2d 1257 places him or kidnapping victim status as denied, 381, 631 (Ct.Spec.App.), cert. 332 Md. continuing danger of harm at her in spotted An officer A.2d 451 not hold captor. or her We will hands of his through a motel room and man’s car outside obtain a delay rescue to must fully man gap the curtains saw clothed exists to believe probable cause warrant lying top woman of one bed and a being held inside kidnapping victim is that a person lying face on the other third down situation, time is of premises. such bed; asleep. appeared all to be Id. three the essence. acknowledged judge A.2d at 1267. The trial on the scene. that “there was no blood any that this case is We do not think injury struggle. signs no or There were prosecutor’s perhaps way controlled anything The room was not ransacked suppression at the unwarranted concession16 tell, nor did he have officer] that could [the hearing officers did not identity of the any information as to the kid- cause to arrest probable person perpetrator, or as to whether napping time took her from 624 A.2d at 1270. Nevertheless armed.” Id. Robbery Branch: home to the ruled, appellate court the trial court for the ar probable think cause don’t affirmed, the officer “to have waited that for time, basically because rest existed at room get a warrant or to have called the misiden- had been the there fact say you right all in there’ would have ‘are to contin officers] had [The tification.[17] ill-advised, well have resulted been investigation. There had to their ue with Thus, injury escape.” in serious Id. Ms. questioning further Oliver. permissible officer’s warrantless exception. exigent circumstances under the added.) pres- may accept for (Emphasis We Id. prosecutor’s concession purposes that a ent “precludes our consider- case, no cause determining recent after In another to determine ing” record facts ourselves for child snatch- that defendant was wanted standard was cause apart- whether ing, returned to defendant’s referring Sergeant prosecutor was noting prosecutor 17. The made It is worth appel- on October 23 Denkins' observations gov- where the in circumstances this concession “Karen," who had been in the lant was not ap- argument principal was that ernment’s ap- kidnapping, nursery just before voluntarily accompanied pellant had been pellant’s was not the infant who station. hospital. taken from the

1169 Hicks, fruits, or evi actually that instrumentalities Arizona v. 480 believe satisfied. 321, 1149, .*, n.*, activity are located at 107 n 94 of criminal U.S. 326 S.Ct. 1153 dence (1987). However, States v. Web to be United probable place L.Ed.2d searched.” 347 (5th Cir.1984), ster, 307, cert. 318 kidnapping cause to arrest for 750 F.2d 2340, denied, 1106, 85 471 to U.S. probable cause believe (1985); States v. 855 see also United endangered separate questions.18 L.Ed.2d are (3d Cir.1983), 1114, 1118 cert. right Tehfe, 722 validity “The to search and the F.2d denied, 904, 1679, 80 S.Ct. dependent right not to 104 seizure are Toler, (1984); 246 Kan. v. 154 State v. arrest.” United 267 U.S. L.Ed.2d Carroll 711, (1990); 287, 269, 280, 715 Common 45 69 543 787 P.2d L.Ed. (1925). 403, Mass.App. 332 Pignone, v. 3 “Probable cause to search is not the wealth (1975). 388, v. n. 9 Defendants probable same as to arrest.” State N.E.2d 392 cause (1975). Doe, 682, 167, probable 115 the need for N.H. 169 sometimes confuse for premises to a need cause search probable As one court has noted: “the probable to the defendant. cause arrest by magistrate a cause determination made 122, 895, Caicedo, 599 v. 135 N.H. A.2d State application considering a search warrant is (1991). 897 by magistrate not to that a identical made Melvin, 492, deciding whether or not to issue an In 596 F.2d United States Johnson, (1st denied, 837, People Cir.), arrest warrant.” 431 100 495 cert. 825, (1979), Mich. 431 N.W.2d 828 court described difference follows: for “warrant to argued that in order a search had to been proper have been there have generally It is assumed the same respon he to believe that was probable cause quantum required of evidence is whether theory explosion.” this for the Under sible is probable one concerned with cause to improper search home was “the of probable arrest But cause search. prior unless the had sufficient evidence so, even if this is it does follow arrest him.” Id. 596 F.2d at to the search to probable probable cause for arrest and rejected argument. In 496. The court cause for search are identical in all re- could the court concluded one stead requires spects. showing proba- Each a of having probable without cause search bilities as to somewhat facts and different Id. at probable cause arrest. circumstances, can and thus one exist with- a police suspected man of another case the out the other. Doe, raping killing supra, a woman. Wayne (quoting Id. 431 at R. N.W.2d suspect, but A.2d at 167. The Israel, H. LaFave & JeRold CRIMINALPRO- enough not have evidence to arrest. did (1984) (footnotes 3.3, § CEDURE, at 184-85 hair, saliva trial court issued warrant omitted)). help identify samples and blood order “general Supreme It is a New proposition that a search the assailant. The Court of warrant, warrant, issue, Hampshire unlike an that the search war arrest concluded justified slightest identity probable cause without the clue to the of rant was because criminal, probable if than cause to probable there is cause to is different search Gates, supra, probable persons, legal 18. We cause to arrest and technicians. note probable cause to enter and search have different (quoting Brinegar, U.S. at althоugh emphases, they apply general the same 1311). supra, 69 S.Ct. at It U.S. Dawkins, principle. States v. thing deprive person liberty and of one 83, 87-88, U.S.App.D.C. 17 F.3d 403-04 deprive person of the untram- another (1994); Gates, supra, see also possession physical space partic- of or of a meled (articulating totality of the 103 S.Ct. at 2328 fully recognize property. ular item We search); probable test for circumstances cause to deprivation of a intense trauma of mother Lincoln, U.S.App.D.C. United States v. baby, deprivation promised here was but that (1993) totality (using 992 F.2d might unjustified brief and a true mother to be test to ar- the circumstances cause empathize urgency investigation well rest). Furthermore, recognize we “ baby kidnapping if re- the situation were ‘practical, concep- cause is a nontechnical ” applied by prudent versed. tion’ to be reasonable Thus, only years, person could not have called arrest. Id. at 169. as one court has entered, help police the but also pres- “it when noted would be unwise to treat the him could have identified or herself and testi- suspect ence of a search for a a warrant Normally, judicial happened. to the officer finding probable cause to arrest.” fied what Johnson, person a is the People supra, could determine whether 431 N.W.2d kidnapping by simply speaking a prosecu- It victim of would also be unwise to treat the Burks, supra, 624 person. with the A.2d police tor’s concession that the did not have (adult identified probable kidnapping at 1270 victim cause to arrest Ms. Oliver as a judicial kidnapped who us” finding probable appellant as “the one no cause to seize room); motel baby police when officer entered the for identification under the emer- (13 Collins, year-old supra, 543 A.2d at 645 gency exception analysis. police upon boy himself to his res- identified The information learned from Howard cue); supra, N.E.2d Benefiel, at 343 cf. University Hospital on October (17 rape year-old kidnapping and viсtim iden- reports previously added to the received separa- hospital following her tified herself at Hawkins, Washington from Ms. and Ms. see However, very appellant). where a tion from supra reflecting appel- at 1160-61 & n. 3—all concerned, way young only the infant is stories, apparent lant’s inconsistent and thus baby in need of ascertain whether the is lies, baby about the in her home —created provide assistance and to assistance is to probable police cause. Once the discovered and, identify the if it has been kid- child baby appellant had not been born to guardian, napped, parent to return it to its claimed, probable as she the officers had case, hospital. in the Because here the baby cause to believe that had been baby, police rely could not victim was kidnapped. discovery lie such information to determine whether changed significantly, the circumstances but Therefore, in the child was need of rescue. prior misidentifications still left some identify baby by police needed to appellant doubt about whether was the other means. Nevertheless, baby’s rightful custodian. reasonably officer could have believed taking baby Entering ‍​​​‌​‌​‌‌​​‌‌​​​​​‌‌‌‌‌‌‌‌​‌‌‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‍the home and although probable he not have cause did narrowly hospital was tailored to achieve appellant to arrest without further informa- did not identification and rescue. tion, to be con- he did have cause any evidence of the crime such as search for baby’s safety justify cerned for the hospi- have worn to the the clothes she positive obtaining a final and identification of Rather, they merely tal. asked Ms. Oliver baby hospital. follow-up questions took the some was for identification. The entire encounter sum, in this had ease peaceful in manner. conducted cause,” i.e., “probable there were reason- — grounds specific, able to believe—“based on Here, essentially the same factors which ... ] articulable that immediate faсts[ established cause believe necessary danger in to assist someone [was] danger prevented the officers was Booth, bodily premises.” harm inside the simply being able to knock on the door supra, 455 A.2d at 1355-56. brought request them for identification. The had Entry Carefully B. TailoRed plain already told the officers a lie about Next, baby. investigation we She knew examine whether falsity story. At carefully provide might in the discover the of her tailored assistance time, not al- point more than had emergency. An officer can do no baby, ready fled with or harmed the she reasonably necessary to ascertain whether is oppor- reason and premises is in need of would have had additional someone inside the assistance, tunity police appeared to do so if the on her provide that assis- and then doorstep again. Once the officers entered The fact that the victim tance. Id. at 1356. If home and equation. an infant discovered affects downstairs, presumably who person of more than tender victim were a to arrest sight, they duty with the intent was not otherwise enter home again appellant, speak to the rather to enter basement to ascertain that the but They baby’s identity. did baby prevent was unharmed its abscon- to ascertain the and by following home for evidence They simply ap denee. so not intend to search the did baby brother, from pellant’s object, appellant kidnapped the who did not down that Instead, they Mejia, Hospital. en- the stairs. 953 D.C. General United States Cf. (9th Cir.1991) (officers speak to 461 in F.2d followed wife tered order baby the in fact the express per whether was into husband’s bedroom without determine mission; permissible baby in need of person kidnapped since and therefore reasonable (finding prop- objection), id. would have otherwise voiced cert. immediate assistance. See Earle, denied, intent); supra, 612 A.2d at 1264 504 112 118 er U.S. S.Ct. (1992). (same). analysis Implicit in court’s scope L.Ed.2d 581 The of their the trial “ hearing ruling ‘strictly justified’ by during suppression the and was thus tied to and Bоoth, finding supra, 455 the officers’motivation for the circumstances.” A.2d was a that Warden, entering identify and rescue (quoting supra, U.S. at the house was to (Fortas, baby find reaction to concurring)). 87 S.Ct. at 1651 J. the and to Ms. Oliver’s Earle, Hospital story being supra, (finding 612 A.2d at 1264 her Howard discovered emergency exception Accordingly, an for since the three warrantless en fabrication. try). in this and the Booth criteria are met case entry did not violate the Fourth warrantless police questioned appellant in a final Amendment, trial court’s rul- we sustain the attempt satisfy regarding themselves the baby ing lawful that the seizure the was identity baby. Appellant provided of the no in identification admissible evidence.20 its explanation point, alternate at that but mere- ly emotionally blurted out that she did not why police leave her know would not the Taint III. Attenuation especially light Illegal in alone of the fact Seizure baby night was not identified the before. above, prosecutor As noted we gave prob- the police This reaction additional suppression hearing conceded baby. Only able cause to seize the cause to officers did satisfactorily explain failed kidnapping arrest at the time previous they separate falsehood did Robbery they her from her home to the took appellant, separation that would Branch, may assume this conces we be of short duration if the were not a considering” “precludes sion our the record kidnap victim.19 whether facts ourselves determine actually standard was satis cause Entry

C. Motivation Hicks, n.*, supra, 480 fied. U.S. therefore, turn, Finally, we must 1153 n.*. We determine whether the S.Ct. at only the taint primarily by remaining question: whether officers’ motivated search, sufficiently attenu by illegal the intent to arrest or to an seizure was appellant’s confession investigate intent to and to render assistance ated to admit Booth, lineup into evi emergency. supra, subsequent 455 A.2d at identifications an they agree with the trial court The officers’ did not dence. We testified ni, imрressed argument 19. We are with the positive Crews, should have undertaken the majority In held that defen- home, process identification suppressed as fruit of dant's face cannot say clumsy process at best. We cannot Ceccolini, majority poisonous held arrest. be conduct- determination that should witness, independent actor with who is an that a hospital, experienced personnel with its ed at will, substantially is attenuated from free often records, constitutionally impermissible. illegal witness is discovered search where the testimony or identification. allow the 20. We note that the identification of independent is an witness in this case holdings be admissible under the being by means Crews, identification other whose States speak. (1980), baby cannot itself v. Ceccoli- resorted since and United States L.Ed.2d intervening baby, warnings important identification of the Miranda are an fac- coupled tor, sure, totality with the of circumstances determining to be whether the here, constituted such attenuation. exploitation confession is obtained of an illegal only arrest. But are not the recently We recapi had occasion to temporal factor be considered. The legal principles. tulate the relevant Patton [illegal] proximity of the arrest and the (D.C. v. United 816-17 confession, presence intervening cir- 1993). Evidence which has been obtained cumstances, and, particularly, purpose police through generally unlawful means flagrancy of the official misconduct are suppressed poisonous must be as “fruit of the all relevant. applies physical tree.” This rule to both Wong evidence and testimonial evidence. (citation 603-04,- Id. 95 at 2261-62 at 484-86, 471, Sun v. United omitted). impor- and footnotes “The relative (1963). 407, 415-16, 441 9 L.Ed.2d any particu- tance of factors in each these “ If, however, intervening ‘an event or other depends lar case of course on the circum- attenuating purge[s] circumstance the taint stances of that v. case.” United States Cher- illegality,’” of the initial need еvidence (5th Cir.1985).21 1196, ry, 759 F.2d 1211 Wood, suppressed. not be United States v. Unquestionably, as the trial court ob- 47, 52, 536, U.S.App.D.C. 299 981 F.2d 541 served, key intervening circumstance (1992) Jordan, (quoting United States v. 294 lawfully positive here was the iden- obtained 227, 231, 1085, U.S.App.D.C. 958 F.2d 1089 baby hospital tification of the as the (1992)). The bears the burden kidnapped previous which had been proving “that the causal chain was suffi day devastating and its aftermath.22 This ciently independent act attenuated conveyed information was to Ms. Oliver and dissipate illegality.” the taint of the Id. at formally placed she was under arrest.23 52, 981 F.2d at 541. Thereafter, following questioning, further underlying inquiry The is whether con- private she was allowed to talk improper fession made after the seizure is a minutes, boyfriend for ten or fifteen and to Illinois, product of free will. Brown v. twenty her brother for fifteen to minutes. 590, 603, 2254, 2261, L.Ed.2d meeting appears The with the brother very have been emotional since was question The whether a confession is a crying upon point, its conclusion. At that product Wong of a free will under Sun confession, appellant gave the which the trial must be answered on the facts of each voluntary court found to be but which she single dispositive. case. No fact is suppress. seeks to workings of the human mind are too com- plex, possibilities Turning of misconduct too to other factors illustrated in diverse, Brown, permit protection separate of the Fourth we note that on three occa- given Amendment to turn on such talismanic sions Ms. Oliver was Miranda warn- per test ings rights. [as “the se or ‘but for’ and waived her These three rule”]. Alabama, (1985); Stevens, Taylor v. 102 S.Ct 702 P.2d State v. (1982), bearing (Fla.Dist.Ct.App.1991); 73 L.Ed.2d 314 a case So.2d State us, denied, Barry, similarities to the one now before the Su- 86 N.J. cert. preme again Court addressed a number of fac- 454 U.S. (1981). determining adequate tors in whether attenua- held, 5-4, Although tion occurred. the Court shown, singular 23.During suppression hearing that attenuation had not been defense coun- Taylor subsequently ar- difference in was that the sel conceded that cause existed to upon obtained evidence which lеd to the confession rest Ms. Oliver the identification of the illegal baby, argued illegally was itself fruit of arrest. but that since was seized the identification of the as the kid- Many acquisition napped giving police probable have found that the child cause to courts through independent cause means is arrest Ms. Oliver taints the confession. Inherent powerful purge argument factor to the taint of an earlier in this is the concession that without See, Cherry, supra, e.g., at 1212 unlawful seizure of the the confession arrest. 759 F.2d cited; Reffitt, suppressed. and cases State v. 145 Ariz. need not be Emergency Exception upon instances were her arrival I. Requirement? questioning, station for when she formal- Warrant arrest, ly placed prior giving under A. (the confession). Thus, her official statement adequately apprised of her “prob- my colleagues that the agree voluntarily rights spoke emergen- requirement constitutional under able cause” passed police. requirement, At hours exception with the least three cy the warrant Booth, between the unlawful arrest and the confes- United States elaborated Furthermore, (D.C.1983), looking sion. at the officers’ and succeed- A.2d 1355-56 facts,” arrest, cases, during illegal there is no the need solid ing conduct “reflects 1166, showing grounds to brutality. Weapons claim of coercion or “reasonable ante displayed emergency existed.” were never and Ms. Oliver was believe some kind seizure, LaFave, (quoting W.R. never handcuffed. The initial albeit Ante Search (2d 1987)). 6.6(a), § unlawful, at 698 ed. with con- was mild and carried out and SEIZURE record, required “reasonable the pending On sideration its tentative nature lacking. “solid facts” are grounds” based on baby. the identification of Heart-wrenching any child-kidnapping as ob- short, totality the of the circumstances is, say viously I cannot there was an emer- leads us to conclude that the confession was justifying a gency warrantless here “ ‘sufficiently purge act of will the free appellant’s home. into ” Brown, primary supra, taint.’ at that, morning the shows on rеcord 602, Sun, Wong 2261 (quoting 95 S.Ct. at when Detective Jenkins October 416). supra, at at appel- investigative his team entered Patton, supra, 633 A.2d at 817. home, were deemed to lant’s the officers categories of information have had the five Affirmed. in investigative file summarized the from the majority It is opinion. Ante at 1166-67.1 FERREN, Judge, dissenting: Associate however, facts important, add critical majority has the officers which known to emergency, de- There was neither an recited, 1161-62, at omitted ante but has law, fined the case nor consent to a war- 1166-67, discussion, legal at from its ante accordingly entry. The trial court rantless majority’s finding undermine the facts that suppress denying in the motion to erred cause. probable baby ulti- identity of the and the confession (a Guard Sergeant Denkins of the National mately appellant taken from at Hospi- Specifically, baby’s at General lunch-hour volunteer D.C. station. identification tal) watching the with lawfully had been babies was not before the court because —who friend, Benjamin, and first-time appellant’s police violated constitutional her Cornell volunteer, “Karen,” baby baby just was rights entering before home take the identify and, thus, only missing “failed to obtaining resulting found identifi- —not ” 23, ante at on Appellant’s appellant also was not as ‘Karen’ October cation. confession testimony for the provided also lawfully in it but evidence because followed appel- arrest, trial hearing and at concededly suppression sufficient unlawful without heavier, shorter, lighter-com- lant attenuation of that taint to allow its admissi- “Karen,” evidence, at and was no ante bility. plected Absent this there was than whom conviction, she remembered is therefore woman basis for and reversal further Sergeant Denkins volunteering.2 required. (D.C. contention, agree 1128-33 Contrary appellant’s See In re that, 1993). majority Jenkins at time Detective appellant’s entered home and his fellow officers law, were, 24, they as a matter of October Sergeant Her state- testified at trial. Denkins privy informa- to the so-called Hawkins deemed hearing suppression presented at the ments were investiga- part it was tion because tive file. through testimony Jenkins. of Detective 3, 1166, 1167 n. 14. Ante at 1161 & n. testified cause, at trial that when ‘probable she had visited specific, based on articulable appellant’s facts, home with the officers a second to believe that immediate is nec- time an hour later on essary October she not in danger bodily to assist someone only identify baby,” harm,’” Booth, had “failed to ante (quoting ante at 1167 1355). explained Here, but also had emergency, officers A.2d at any, baby missing nursery from the solely question had turned on the whether the reddish, hair, tapered unusual probable whereas the officers had cause to believe that appellant’s browner, home curli- appellant’s home was the victim er hair. Ante at 1162. For these two rea- of a kidnapping. probable If there was such positive, cause, presumably, .detailed very nonidentifieations then fact of a sons— both of and of the kidnapping felony as the was in dan- —a —the putative victim, kidnapper if, respectively— however, ger;3 probable there was not least, necessary, say cause, it is that for the appearances then from all there was (ie., officers to have had danger, cause rea- no emergency. and thus no grounds) sonable to believe several hours Because the viewed as the later, on October was the (there only possible kidnapper were no other kidnapper, they must have had “solid facts” suspects), question whether there was repudiating either these nonidentifications or probable justify warrantless, cause to effectively establishing least emergency entry home to right, cause in despite their own the noniden- baby, kidnapping, save the aas victim of new, tifications. Such “solid facts” never question the same as the whether there was light, leaving came to majority the with a probable appellant cause to arrest for kid- legal analysis. flawеd below, napping. As elaborated there was probable appellant, cause to arrest then

B. probable there was not cause on the facts here purposes For to search her home. applying emergency of the doctrine, my colleagues agree only that the might danger

reason the infant have been “in C. harm,” Booth, bodily of 455 A.2d at was theoretically question It is true that the was, indeed, possibility the that he the kid- probable justify whether there is cause to a Indeed, napping everyone agrees victim. particular property search of is different that, possibility, ap- but for this the infant question probable the whether there is peared to be well cared for and safe on owner; property cause to arrest the evidence Appellant’s October 23. equipped room was transactions, drug example, for partic- at a nursery clothes, equipment necessarily ular location implicate does not Jenkins, apparently and Detective satisfied Caicedo, any particular person. See State v. baby’s environment, with the told (1991); 135 N.H. see would be returned to her if the Webster, generally United States v. 750 F.2d infant hospital. could be identified at the (5th Cir.1984) (citing LaFave, Moreover, confirming percep- the detective’s 2.1(b) (1978)); § Search SeizuRE tion that appeared the had not to be Melvin, (1st States v. 596 F.2d at 495-96 Braxton, assistant, danger, nursing Ms. the Cir.1979). police It is also that true can testified at trial infant “was all probable have particular cause to search right” police brought him to the property crime, reasonably for the fruits of hospital. suspecting property owner committed case, therefore, crime, This majority as the having probable itself but without cause acknowledges, owner; typical emergen- “is unlike the tip, to arrest the a reliable for exam- cy exception scene, case where ple, may blood warrant particular the search of gunshots, help give or police premises cries for will fоr the instrumentalities of a bomb- agree majority’s I ping may exigent with the emergency view that cases from create or circum- stances, jurisdictions unique "[o]ther the[] reflected even without direct evidence of a threat qualities kidnapping holding kidnap- bodily harm ato victim." Ante at 1167.

H75 why showing I the facts supplying enough to Before address ing cause arrest without (and arrest probable no cause to until there was property owner unless and search), Melvin, it criti- ‍​​​‌​‌​‌‌​​‌‌​​​​​‌‌‌‌‌‌‌‌​‌‌‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‍is probable cause to illegal thus no search reveals firearms. See note, acknowledges, 496; majority to generally cal as 596 F.2d at see W.R. LaFave 3.3, prosecutor himself § ISRAEL, ante at & J.H. CRIMINALPROCEDURE hearing (1984). suppression conceded at the 184-85 probable not have cause did however, case, there was This different: time kidnapping at the appellant for arrest whatsoever, probable no basis let alone Robbery her home to the her from took cause, appellant’s search Branch: probable cause home unless there was ar for the probable think cause don’t kidnapper thus believe —and that time,[4] basically be rest existed subject appear- as such. From all to arrest that there had been cause fact ances, baby nothing there was about the officers] had [The misidentification.[5] any appellant’s gave home that cause investigation. There with their continue concern; appel- no there was cause search Ms. questions of Oliver. had to be further home, any other home lant’s where live, was known to unless there was added.) alone— (Emphasis For this reason particular occupant cause believe a have a —in court would on the facts here —this committed crime this case concluding no there was —had sound basis for baby’s changed the from safe to status itself, emergency; Supreme Court short, imperilled. all the informa- acknowledges, has not- majority ante at suspicion appel- tion aroused came from prob- prosecutor’s of nо ed that a concession lant, baby; ground not from there no “precludes considering” the our able cause independent for search sus- proba- whether the record facts determine particu- pected status as a criminal. In this actually satisfied. ble cause standard was case, therefore, sep- theoretically lar the two Hicks, n.*, 107 Arizona v. questions arate cause search n.*, —to 94 L.Ed.2d latter, merge; the and to absent the arrest — facts, I con- looking But even former fails. cor- prosecutor’s assessment was clude the say majority, I cannot My colleagues Contrary rect. cite decisional and treatise that, immediately before Detective Jenkins proposition law for the that unassailable appellant’s entered probable cause and the other officers probable cause to search and 24, they “probable theoretically had present separate ques- home on October to arrest facts,” cause, specific, they general test on articulable tions. But do not this based Booth, the They A.2d at to believe that proposition with the facts. do not— and, kidnapping victim different indeed and cannot —demonstrate two was harm,” (and thus, bodily It is legal) analyses danger of id. applied can to “in factual ap- here; that, returned to questions their when the officers the search arrest true 24, Detective Jen- legal principles pellant’s home on October citation of theoretical is used University that Howard finding probable a cause to kins had discovered justify to of “employed named ‘Worth’ creating Hospital a to no doctor smokescreen cover search while 1168-70, patient assumption, appellant had not been operating and that their ante past years.” five probable hospital not cause within that the did to But, majority contrary Ante arrest. referring Sergeant Den- interesting prosecutor prosecutor was 5. The It is to note probable appellant no cause even after conceded there was 23 that kins' observations October appellant "Karen,” nursery confronted in the who had been not information on October 24 home appellant’s just kidnapping, before University Hospital had no Dr. that Howard taken who had been was not the infant delivery the no record of her Worth and showed previous hospital. from the respond day, appellant had failed lie, asking the apparent instead to one more leave her alone. view, discovery “dramatically this did not upon “later time” speak, she was called change[ equation.” the whole Sergeant gave very specific ] Ante at 1167. Denkins noniden- majority implicitly acknowledges tifieations. She not have known she despite much: previously the information identify re- would be called on to “Karen” and but, ceived Washington awareness, from Ms. baby, despite and Ms. Haw- that lack of kins, 3, 1166-67, know, indicating ante at 1161 & n. apparently she did ato detailed cer- appellant baby, had lied tainty, about the Ser- who were not. geant very specific, Denkins’ unequivocal that, Finally, majority “given adds “Karen,” statements that was not shifting personnel and uncertain in the nurs- presumed kidnapper, appellant’s and that ery, only Karen was not the individual who baby was not the one taken hospi- from the might have absconded with the infant.” tal, were affirmative nonidentifications that pure Ante at 1167. makeweight. That is effectively negated finding My colleagues are —with no discernible au- (or arrest). cause to agree search I cannot thority taking judicial notice of a fact — the information learned from Howard (“shifting personnel”) and uncertain University Hospital on October while presenting has “noticed” adding suspicions appellant, about arguments appeal. its at trial or on To the enough point creating —to contrary, premise under which Detective Sergeant cause —to overcome Denkins’ ex- Jenkins and his fellow officers—and later the press exonerating appel- nonidentificatiоns prosecutor operating was that “Kar- —were day lant the before. kidnapper, en” was the and that there would place,

In the first this added information entering appellant’s not be a basis for home “collapse fact, did not cause the appellant, were not “Karen.” story.” Rather, major- Ante at 1167. as the Respectfully, I my colleagues believe find ity later, itself acknowledges two sentences emergency based on their understandable “[t]he new information seemed to confirm finding kidnapped baby, concern for strange pattern reported by of conduct giving because there were “solid facts” Hawkins,” Washington Ms. and Ms. ante at (ie., police “probable cause” “reasonable (emphasis added); merely there was grounds”) ap believe that the police already confirmation of what the knew pellant particular kidnap was a victim. As it from two other sources: was a liar. out, course, turned kid was the majority adds would seem remarka- “[i]t victim, nap reality and this causes us all to ble that a new mother would lie about where But, say “Thank God he’s safe.” at least gave yet she birth.” Ante at 1167. And my understanding the Fourth majority reports itself had ear- Amendment, reality my this has col caused lier lied to Ms. hospital Hawkins about the effect, leagues, say in that this is the kind given where she had birth and abandoned a emergency exception of case which the baby. Again, Ante at 1161 n. 3. the October reshaped— should be loosened or bent or 24 lie was a lie no more remarkable than helpless whatever it takes —to save a stolen appellant’s pattern lying. established of Ser- baby. Supreme But of course the Court testified, however, geant Denkins had repeatedly has warned the seriousness lies) (despite such was “Karen” investigation of the offense under cannot it appellant’s baby was not the one abduct- creating emergency justi self be a factor ed. A cumulative he did not erase the force fying Thompson a warrantless search. See of that еxoneration. Louisiana, 17, 21, v. 469 U.S. 105 S.Ct.

Next, may (1984); “Sergeant it be true that Den- 83 L.Ed.2d 246 v.Welsh Wiscon sin, 740, 753, 2091, 2099, kins had no reason whatever to think at the 466 U.S. 104 S.Ct. (1984); York, acquaintance time of her earlier with Payton either v. New 573, 583-90,100 1371, 1378-82, Karen or the that she would be cahed 445 U.S. upon (1980); positive Arizona, to make a Mincey identification of ei- 63 L.Ed.2d 639 v. 385, 394, ther of them a later time.” Ante at 1167. 437 U.S. (1978). true, is,

But even if that By sustaining applica- were the fact at the L.Ed.2d 290 might have strategies also emergency doctrine for the war- inside. Other tion case, colleagues my. profitable. rantless search proved using child-kidnap- are of a seriousness course, risk, always There was a ping justify impermissible an otherwise long as child as he could come to the harm private This can- residence. we no one grasp and appellant’s within Supreme properly do. The Court has law— perspective of the from the else’s. But explained: indeed, country has the Constitution —this dealing with formalities. We are not that risks of principle to the long subscribed presence The of a warrant serves a search residence, closed, private what- harm inside high grave emer- function. Absent some be, are tolerable risks ever those inter- gency, the Fourth Amendment has intolerable, warrantless compared with the posed magistrate between the citizen and likely “emergen- unless invasions to occur police. This was done not to shield excusing requirement warrant are cies” criminals nor to make the home a safe on “solid based at least limited to those It illegal haven for activities. was done so facts,” 1166, giving rise ante objective might weigh that an mind case, may have been cause. In this there privacy in need to invade that order to meaning suspicion, right privacy reasonable within enforce the law. The Ohio, 1, 88 precious Terry too to entrust to the dis- deemed cases; job (1968), succeeding cretion of those whose detection L.Ed.2d 889 crime and the of criminals.... because, here, arrest was no on the facts there but true to constitutional We cannot be appellant for kid- probable cause to arrest requirement and excuse the absence of a concedes, there napping, as showing by search without a warrant those cause,” i.e., there were no “probable was no — exemption who seek from the constitution- grounds believe—“based on reasonable exigencies al of the situa- mandate specific, ... that immedi- facts[ ] articulable imperative. tion made that course necessary to assist someone [was] ate McDonald danger bodily premis- harm inside 455-56, L.Ed. Booth, 455 A.2d at 1355-56. es.” appellant’s Fourth Amendment violated police, suspi- their reasonable rights.6 cions, were not without resources to check further, out the situation consistent with Alleged II. Consent

maintaining safety and the child’s with the ENTRY WARRANTLESS They could dictates of the Constitution. did, tried, effectively they more than alternatively, has government, Because ap- obtain third consensual interview argued appellant consented failed, pellant. II. Part If that which, true, infra would entry on October 24— attempted to obtain the as- could have (or any for a warrant the need obviate persuading brother in sistance of exception) emergency discussion of —I truth, point to tell the where to that issue. turn cause to believe that entry under By justifying the warrantless kidnapper was a that she was —or exception, my colleagues emergency do approach appel- To make this third not. finding trial court’s need to address the effective, po- her brother more lant and entry. is police It reasonable of a consensual by arranged for con- visits lice could have infer, however, by ignoring trial hospital who had means of personnel, cerned remand, ruling, on an issue court’s after police baby. identifying kidnapped of noncon- consideration logically precedes presence outside the maintained a could have sensual, colleagues entry, my home, warrantless to harm to the child deterrent entry precludes under the "probable a warrantlеss Having three concluded that Booth's here, Booth, requirement is I need not emergency exception. not met cause” police criteria the the other two Booth consider officers 1355-56. satisfy; any meet had to failure to manifest, least, very skepticism By proceeding their to the basement of the about ruling. the trial court’s In having to in apparent response police house issue, conclude, address the aas matter of expressed speak officers’ desire to law, that findings trial court’s crucial continuing Defendant and to the basement clearly were erroneous and that there was no Oliver, following, with the officers Mr. entry. consensual thereby expressed willingness his to ac- by leading commodate the officers them to A. purpose speaking the basement for the April 22,1994, On we remanded the record By doing, with his sister. so Mr. Oliver to the trial supplemental court for findings of entry house, consented to into the includ- fact and conclusions of law as to “whether ing the basement area where Defendant had received ap- consent to enter was then located. pellant’s 24,1989, and, so, home on October if house, As a resident of the .Mr. Oliver whether this permit consent extended to en- apparent authority had to admit others to try appellant’s into bedroom in the base- exclusively assigned areas not to someone Specifically, ment.” we asked the trial court else. The area of the basement where findings “make of fact and conclusions of sleeping Defendant apparently had law, supported by record,” evidence in the partitioned any not been nor is there indi- clarifying: cation that entirety the basement in its had (1) anyone whether consented to the initial designated been for Defendant’s exclusive police entry house; and, so, (2) into the if use.... Moreover the court finds that consent; gave who person whether this herself, Defendant though annoyed with authority entry to consent to the into persistence, the officers’ nеvertheless ex- house; consent, whether given, pressed willingness to accommodate also appellant’s extended to into bed- their desire to enter the basement to con- basement; (3) room in the in any by simply verse asking with her if she event, whether consent to enter the house get should dressed when she was called appellant’s imputed bedroom could be her brother. appellant, including whether The court concludes that both Defendant police entry herself consented to into the and her brother consented to house or into her bedroom. the basement apparent and that both had 6, 1994, May On the trial court made the authority grant such consent following supplemental findings of fact and incorporated conclusions and them the rec- gave parties twenty We then days ord: file, simultaneously, memoranda on the trial 24th, At about 11:00 a.m. October Detec- supplemental findings court’s and conclu- tive Rufus Jenkins and other officers sions. memorandum in re- home_ visited Defendant’s The offi- sponse to the trial findings, court’s she con- cers were met at the door Defendant’s (1) tends that findings the trial court’s factual brother, Lamard Oliver. The officers stat- record, supported by are not evidence in the speak ed their desire to with Defendant. (2) and that trial court failed to hold the Defendant, Mr. appar- Oliver then called proving to its burden “clear ently to inform pres- her of the officers’ positive testimony” of consent that ence after which inquired Defendant as to “unequivocal specific,” Judd get whether she should dressed. Mr. Oli- States, U.S.App.D.C. 190 F.2d then, following, pro- ver (a) (1951), because Mr. Oliver’s actions ceeded down a stairwell to the basement of justify entry cannot under the doctrine of apparently the house which consisted of (b) consent, implied and Mr. Oliver lacked large one room. apparent authority both actual and to con- ^{[*] [*] [*] [*] [*] [*]} sent to entry bedroom.7 memorandum, supplemental govern- In its the merit asserts that “because has never

1179 reasonably be сrossed government agree I with threshold 590, at proving, at 100 S.Ct. failed to meet its burden of a Id without warrant.” id., testimony,” that Mr. positive “clear and appellant volunteered consent Oliver and/or warrant re- can An individual waive coercion, police entry, “duress or free from consenting to a search and quirement implied.” express or v. Busta Schneckloth Schneckloth, 219, 93 412 U.S. at seizure. See 2041, 2058, monte, 218, 248, 412 U.S. 93 S.Ct. Judd, 2043; at 65- U.S.App.D.C. at 89 S.Ct. (1973). 36 L.Ed.2d 854 66, government, at 650-51. The 190 F.2d however,

B. prove with “clear and must consent Judd, U.S.App.D.C. positive testimony.” 89 summarize, first, applicable I law Furthermore, 66, con- 190 F.2d at 651. at government person contends consented “voluntarily given, not the sent must be entry “It is to a warrantless of the home. coercion, egress or im- result of duress or ‘physical entry of the axiomatic that Schneckloth, 248, 412 U.S. at 93 S.Ct. plied.” against is the chief evil which the home and duress “[i]ntimidation at 2058. Because wording of the Fourth is direct Amendment ” always implicit in such situations” are almost Welsh, 748, at 104 S.Ct. at ed.’ 466 U.S. badges and de- display their where officers (quoting 2096 United v. United States States Judd, search, 89 intentions clare their Court, 407 92 District U.S. S.Ct. 651, 66, at ‍​​​‌​‌​‌‌​​‌‌​​​​​‌‌‌‌‌‌‌‌​‌‌‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‍U.S.App.D.C. 190 F.2d (1972)). 2125, 2134, 32 752 Because L.Ed.2d establish consent —must government protects public requirement the warrant —to “acquiescence to more than the mere home, show “[i]t from needless intrusions into the authority,” Bumper v. North claim of lawful principle is Fourth Amendment a ‘basic 1788, Carolina, 549, 543, law that and seizures inside home searches (1968); clearly 1792, it must 20 L.Ed.2d 797 presumptively unrea without warrant are of intimidation du- establish the absence Payton, sonable.” 445 U.S. at S.Ct. Schneckloth, 412 sum, U.S. at Amendment ress. See at 1380. “the Fourth Judd, 2058; U.S.App.D.C. at S.Ct. at has drawn a firm line at entrance to the circumstances, 651.8 exigent 190 F.2d at house. Absent government. See challenged entry with the Schneckloth legality remained of the officers’ basement, 218, 221-22, Bustanionte, doubly this is- she has forfeited 412 U.S. 2044-45, (1973); I Bumper and in this Court.” sue—in the trial court 36 L.Ed.2d disagree. Carolina, 543, 548, 88 v. North suppress Appellant moved to confession If there as the fruits of and the identification of any present the consent fault in failure an unlawful search and seizure. Once remand, govern- is the it issue until after the occurred had shown that the and seizure ment’s, be the trial court ruled failure to sure however, warrant, prov- without a ing the burden alternative, consent, suppression at the in the exception requirement to the warrant hearing. government. During suppres- shifted to the government argued hearing, sion time, relied on this court has 8. From time “emergency exception” justified the warrantless require- positive testimony” "clear and Judd’s baby. entry and seizure of the Because the trial law, remain- as a correct statement ment ing argument, agreed government’s court with the See Martin Unit- intact after Schneckloth. excep- the court did not consider whether other States, (D.C.1989); v.Welch ed A.2d requirement, as con- to the warrant such tions (D.C.1983). 466 A.2d entry, applied. also sent requirement consent be additional Judd’s government we appeal, the realized that On however, specific,” has been “unequivocal and agree might court that the trial that, based updated by formulation Schneckloth’s justified en- emergency exception the warrantless circumstances,” con- “all the on examination of accordingly government try and seizure. The given, "voluntarily and not if will found sent that, application argued about we had doubts coercion, express im- or duress the result of government emergency exception, the 248-49, Schneckloth, plied.” justified argue that consent be allowed should J.M., 2058-59; re see In We remanded the record and seizure. Thus, banc). (D.C.1992) (en apply the findings government’s suggestion ás to following drawn from Judd standard consent. consent, prove voluntary Schneckloth: proving that free and The burden testimony,” positive provide entry always "clear and has must authorized the initial consent 1180 (b) findings door,

This court requested permis- treats of consent as never the officers determinations, (e) home, only factual to reversible sion enter the and Mr. Oliver’s J.M., clearly merely walking away erroneous. In re from the 619 A.2d front door to 497, (D.C.1992). sister, speak part 500-01 A trial appellant, “court’s find his another ings clearly any are ‘to apparently body erroneous the extent that without house— they entry to recognize [important] gesture inviting imply permis- fail incidents —did enter, reject or fail to draw sion for the than the inferences rather wait inescapable which appellant. we found from the Mr. while Oliver consulted with Omaha, City record.’” v. 785 Griffin of government’s Detective Jenkins was the 620, (8th Cir.1986) F.2d 628 (quoting Alexan only suppression hearing witness at the who Organization, der v. National Farmers 687 regarding testified the officers’ initial (8th 1173, Cir.1982), denied, F.2d 1203 cert. appellant’s home on October 937, 2108, 461 U.S. 77 313 L.Ed.2d addition, witness, appellant’s a defense broth- (1983)); Stewart, Biggs 159, see v. 361 A.2d er, Oliver, Lamard testified the offi- about (D.C.1976) (trial findings court’s are entry. Through testimony cers’ of these clearly “sufficiently erroneous when com witnesses, therefore, government two prehensive pertinent to the issues as to showing the burden of the officers provide a basis for decision” or when not crossed the threshold of the with vol- home record). by supported evidence untary “acqui- consent than rather the mere mind, principles authority.” With these of I law turn escence to a claim of lawful 549, Bumper, to the evidence. 1792. I U.S. at 88 S.Ct. at cannot conclude met its burden. C. Both Detective and Mr. Oliver Jenkins home, As to the initial police into the agreed that Mr. Oliver answered the door in I conclude—as elaborated below—that response to the officers’ knock. After this trial finding court’s of clearly consent is erro- however, point, descriptions their of what (1) following neous for the reasons: The trial significantly. occurred differed Detective findings court failed make what Jenkins described how the entered officers precisely occurred at the threshold of the appellant’s home told as follows: “We him house, despite remand the record with officers, proper that we were identifi- clear instructions to do so. This omission cation was shown told him we want-

necessarily government’s reflects the failure talk ed to Lisa [Mr. Ms. Oliver.... prove, positive testimony,” with “clear and Oliver] admitted us in house to come in. cоnsent, Mr. Oliver’s or free from stepped He back door and admitted (2) coercion, or express implied.” “duress foyer the hallway us into there.” home Even if the fully trial court had credited testimony Detective Jenkins’ that Mr. Oliver Mr. Oliver described the same differ- event (which said, had admitted the ently: “They officers house I asked was Lisa home. not), testimony yes. said, the court did get you’ could not And I ‘I’ll her for and I support finding implied around, get consent because went her. When turned (a) Mr. Oliver they did not know that the came on in the house.” was— cross-examined, were opened outside before he the When Mr. Oliver denied Judd, 651, States, U.S.App. 190 F.2d at such derance of the evidence." Oliverv. United (D.C.1993) that, (citing Bumper 618 A.2d taking “all the circumstances" into consid- Carolina, North eration, "voluntarily the court finds consent was L.Ed,2d (1968), Matlock, States v. coercion, given, and not the result duress or 178 n. n. Schneckloth, implied,” express or 412 U.S. at (1974)). Any proof L.Ed.2d 242 less clear 248-49, Although may 93 S.Ct. at 2058-59. it sufficiently would not demonstrate sus- appear tautology, be a this court's shorthand pect merely had not submitted show to a "voluntary for this formulation is consent." This authority, satisfy which of course "does not with, standard consistent and reflects the government’s proof.” burden Id. See also which, "government 741,-n. means bears the bur- Burton United (D.C. (Schwelb, J., 1994) proving voluntary prepon- dissenting).

den of consent Dec. then, police offi- Mr. Oliver entry dressed. had consented to the officers’ he a stairwell following, proceeded down foyer: cers admitting them apparently consist- which to basement in, you? Q: you them But let didn’t ed of one room. No, opened in. I A: I didn’t let them door them. happened to enter officers How Q: opened the door for them? You finding of any clearly to material house A: Yes. fail usually court’s a trial Although consent. issue findings on a material right. they in? make Q: All Then walked ure to remand, Tauber v. District requires see door, they A: I answered the walked (D.C.1986), there Columbia, 511 A.2d on their own. make the failure to point where comes they to Q: They have brush didn’t —did inability to government’s findings reflects by you physically? case, opposed to thе trial court’s prove its I go get I and when A: No. left Lisa addressing Be oversight the issue. mere back, they already in. came was explore the government did not cause the Well, you say you opened the Q: hearing, and suppression issue at consent them, sir, you open the did door rec already remanded the because we door, while were— and, consent, findings specifically for ord I you my If door and A: No. knock further, has because it open the door to see who is— findings clarify its moved the trial court Q: you it a fact that at no time did Isn’t them after this court considers before stay them to tell outside? remand, fail we have reached that I believe stay A: I tell them to outside. didn’t The trial court’s ure-of-proof point here. said, you “Okay, Q: it fact Isn’t the details officers’ failure to address sister”, Officers, in, my get government’s come I’ll failure reflects the you anything testimony” didn’t think positive because of vol present “clear and wrong? Judd, consent, at untary U.S.App.D.C. or of duress “not the result 190 F.2d at No, I A: let the didn’t. don’t Schneckloth, coercion, express implied,” Nothing. my like house that. at 2058. Mr. nor Oli- Neither Detective Jenkins’ on October ver’s account of initial Indeed, com- if the trial court had even opened the screen door addressed who testimony Detective Jenkins’ pletely credited (the disputed). no existence of which one entry, I not believe regarding the initial do occurred on discussing the entries that When finding testimony support could that this however, explained Mr. Oliver October testi- voluntary Detective Jenkins consent. that, although he had left the front door in the us Mr. Oliver “admitted fied that but un- open, the screen door was closed stepped back from house come in. He latched. foyer hallway admitted us into the door and Unfortunately, the trial failed court never Jenkins the home there.” Detective findings regarding the critical issue: make opened the screen Mr. Oliver testified that precisely on October what occurred gestured in a manner otherwise door or fact, the trial of the house. threshold consenting the officers’ implied he was en- not address how the officers court did Furthermore, nothing in Detective entry. Instead, tidal court tered house. offi- testimony suggested that Jenkins’ fol- skipped point the officers where to enter asked Mr. Oliver cers ever stairs: Mr. Oliver down the basement lowed Instead, conclu- Jenkins’ Detective home. the officers “admitted” that Mr. Oliver speak sion stated their desire officers solely on the fact foyer based into the then called Defendant. Mr. Oliver stepped from the back Defendant, that Mr. Oliver her of the apparently to inform objected once and had not which Defendant door presence after officers’ get had come inside. inquired as to whether she should Certainly, purpose “consent to enter a other house side of closed implied expressed.” as well as Terrell v. every door has reason to assume that the (D.C.), United 210 cert. door, unlocking opening of and act denied, 50 more, talk, without is a consent to and that (1976) (quoting L.Ed.2d v. United States walking back into the room is an im- (8th Cir.1975)). Turbyfill, 525 F.2d talking in- plied invitation to conduct the Indeed, courts, court, including several side. opening step have concluded that a door and added). Robbins, (emphasis F.2d at ping implied can back constitute invitation Furthermore, nothing in Jen- Detective (consent e.g., to implied enter. id. where testimony suggested officers kins’ officer knocked on him door and identified if they ever asked Mr. enter the Oliver could officer, police opened self as and codefendant Both Mr. home. Detective Jenkins and Oli- door and walked into back room without that, ver testified when Mr. answered Oliver saying anything); Griffin, States United door, police merely they told him that (7th Cir.1976) (consent implied 530 F.2d 739 speak appellant. wanted to As the where defendant door slammed on officers Appeals of United States Court for the Ninth they opened after first time but knocked then has Circuit noted: stepped response door and back in to second knocked);. they Turbyfill, time 525 F.2d at 57 expect We do not others to walk to (consent implied homes, where officers identified open, our even if the door with- is themselves, occupant opened door a feet few requesting permission first to out enter. back, stepped opened and un and officers enter, police without That would so house); locked door screen and entered Bob impression authority request, creates an MacKenzie, (1st Cir.), bins v. 364 F.2d to do so. denied, cert. Shaibu, States v. F.2d (1966) (consent implied L.Ed.2d 140 where (9th Cir.1990). officer identified himself and his to desire quite The facts of case are simi- defendant, respond talk with and defendant case, In lar to facts of Shaibu. four ed, minute,” a opened “Just unlocked and police apartment officers buzzed Shaibu’s room). door, then and walked back inside intercom, security gate. from the Over the case, however, Unlike this these decisions Although Shaibu asked who was there. he person open- concerned situations where the response, gate received no he sounded the ing already police the door knew that officers release, apart- and the officers entered the Thus, were action opening outside. complex. walking ment As the officers were stepping clearly the door and back showed apartment, the hall down towards Shaibu’s (as opposed merely an intent to admit to opened apartment Shaibu his door and went see) person desire to on the side. other out meet to them. One the officers asked As the Appeals United States Court of suspect Shaibu whether the for whom explained: the First Circuit has looking apartment. were was in his Shaibu householder, knowing identity When a apartment, turned and walked into the leav- caller, purpose opens her] of his [or ing open, the door and the followed inside, her] his door and turns back he [or him inside. The Ninth Circuit declined expresses by his [or she] [or actions her] given im- find Shaibu had the officers adequate entry [or consent as he plied apartment, permission to enter be- by a invitation. Tо be she] would verbal permis- requested never cause the distinguished are cases where a house- explained: sion to enter. The court opens knowing holder a door not is who thing one infer from ac- It is consent there and with armed finds himself faced responding police request. It tions is authority. open- In such cases the act of quite another walk- to sanction the ing merely door be to is see who ing person’s stopping in to a home without there, turning may only back be re- permission. at the door to ask police[ treating. But a who identi- officer] fies himself [or herself] and his [or her] ^{[*] [*]} ;|: ^{[*] [*] [*]}

H83 again, Once specific the record evidence. We hold that the absence Consider conflicting by police faced with request permission to enter a the trial court was Oli- and Mr. home, object testimony of Detective Jenkins a defendant’s failure addition, regard- testified not sufficient to establish free ver. such the base- ing the bedroom will not infer voluntary consent. We Mr. agreed that All witnesses ment. three the consent. request both the to tell her called down Oliver Id., 1427-28; Pung, see Howard testimony there. Their were (8th Cir.1988) (act step F.2d responded, how- differed as to how opening not sufficient ping back while door ever. denied, consent), evidence tacit cert. appellant that Jenkins testified Detective He responded, them come down.” “Have (1989); Clark, 597, 599 State v. 844 S.W.2d told the offi- explained that Mi*.Oliver then (no (Tenn.1992) inference of consent where cers, down,” went all “Come on door, opening stepped defendant back after hand, Oliver, on other Mr. downstairs. invitation). officers entered But without responded, appellant that “Should testified Garcia, United States 997 F.2d see explained put that on clothes?” Mr. Oliver (9th Cir.1993) (inference of consent stairs, two or three he down the when walked that where trial court found defendant inter Appellant testified officers followed him. request request preted officers’ to talk as to her came to the basement that when brother enter, affirmatively responded and defendant there, police were told her that the door and request way stepped to back to clear “put to going him that she was she told Likewise, entry). I believe that officers’ up to talk something on” and would come police specifically do not ask to when with them. home, unequivocal, enter the resident’s vol untary merely be inferred consent cannot judge specify not Although the trial did object entry, from failure to to the at least credited, it from the he is clear which witness body language invita when no indicates an appellant’s and Mr. findings he credited that tion to enter. testimony appellant that asked Oliver’s dressed; get judge should

whether she testimony not credit Detective Jenkins’ did D. appellant and Mr. Oliver invited the major finding, trial court’s second The trial court’s officers to “come on down.” entry officers’ Mr. Oliver consented findings state: basement, clearly into the also erroneous. Defendant, appar- called Mr. Oliver then appellant’s trial court Once the credited pres- ently inform her of the officers’ testimony Oliver’s “in- Mr. inquired as to after which Defendant ence quired get as to whether she should Mr. Oli- get dressed. she should whether dressed,” crediting rather than Detective pro- then, following, ver with testimony appellant had invited Jenkins’ to the basement of down a stairwell ceeded down,” court the officers to “come on the house.... more, infer, reasonably without could not finding clearly would be war- voluntarily A of consent that Mr. Oliver had consented to trial court had credited Detec- leading his sis- ranted if the the male officers into trial court bedroom, testimony. Once the knowing not Jenkins’ that she was tive ter’s testimony appel- Mr. As I concluded with re- credited Oliver’s properly dressed. get should she “inquired into the lant as whether spect initial officer’s dressed,” however, ap- house, it that neither object follows when the Mr. Oliver’s failure pellant her could be said steps, nor brother him basement police followed down the so, officers’ voluntarily consented to the рermission can- asking his to do without yet court And the trial inferring into the basement. reasonably be not the basis and her broth- consent, the offi- concluded both than submission to rather entry: er to the authority. consented cers’ By proceeding inquiry to the basement of ferred is that she apparent response house in fully If anything was not dressed. else were expressed officers’ speak inferable, desire to with it be that would either continuing Defendant and to the basement upstairs would come to meet with the offi- following, the officers cers, dressed, Mr. Oliver getting after or would not con- thereby expressed willingness his to ac- anyone’s entry sent to into the basement commodate leading the officers them to until she opportunity had had an to dress. noyed finds that theless was then located.... Moreover the court ing the basement area where Defendant consented to entry into the basement his with the officers’ expressed sister. Defendant for the By so purpose herself, persistence, willingness doing, house, though Mr. speaking includ- to ac- never- Oliver 481, an- 175, consent to another See United Commonwealth, fully ^[*] clothed (D.Minn.1980) (“Most (1986) (same).9 ^[*] States v. do ^[*] person’s entry.”); Va.App. Wenzel, explicitly H* persons ^[*] 347 S.E.2d impliedly F.Supp. Walls ^[*] commodate their Shaibu, desire enter the base- Adopting reasoning I con- by simply ment to her converse with ask- inescapable it from clude is the record that ing if get she should dressed when she was government prove to failed Mr. Oliver’s by called her brother. voluntary entry initial consent to the into the by home positive testimony. clear request by enter, Absent a the officers to finding proceed- court’s that Mr. Oliver trial voluntary consent merely cannot be inferred ed to the basement with officers follow- or, from object entry one’s failure to ing, in the absence of additional factual find- case, away walking this from the front ings regarding entry the basis actual into toward appel- door the basement to talk with home, support does not the trial court’s specifically, lant downstairs. More one can- finding that Mr. consented to ini- Oliver not infer on this record Mr. Oliver vol- Furthermore, entry. given tial the trial untarily consented to two or lead three male finding court’s appellant “inquired as to police officers into bedroom his sister’s know- whether get she should dressed” rather than ing she properly only was not dressed. The inviting down,” the officers to “come on I also logical inference from these facts is that Mr. conclude “inescapable it is from the record” authority by Oliver submitted to the officers’ that neither nor Mr. Oliver volun- failing object when the officers followed tarily entry consented to the officers’ steps. him down the basement Submission findings The trial court’s authority of con- support finding cannot basement. of con- sent, therefore, erroneous, Schneckloth, clearly are sent. See U.S. at 2050; 548-49, warrantless entries into the house Bumper, U.S. justified bedroom ground. S.Ct. at cannot be on that 1791-92. E. III. Finally, finding appel- trial court’s Ag lant herself consequence consented to officers’ of the Fourth Amend- “simply asking basement emergency, she violation here —no no con- ment sent, get should dressed she was no called court should warrant —this order the clearly is, her brother” is suppress resulting also erroneous. It court to identifi- trial fact, a virtual non-sequitur; someone the kidnapped who cation infant. asked routinely Wong for an does not interview See Sun v. United 407, 416, invite the interviewer into her room while (1963).10 reasonably All undressed. that can be in- We also should order the trial court the trial 9. Because conclude that court’s con- officers' bedroom in the erroneous, findings clearly basement. are it sent essary is not nec- appar- Mr. Oliver address whether government's argument 10. The implied authority ent actual consent to the lapks seizure, standing challenge and thus suppress appellant’s po- confession SCHAFER, Appellant, con- lice station. id. F. Mark arrested, unlawfully cedes time to believe absent cause STATES, Appellee. kidnapper. subsequent Her con- UNITED

she fession, (unlawfully learning that after No. 93-CM-1631. seized) baby had been identified —and after having boyfriеnd and conversations with her Appeals. District of Columbia Court brother, not the Mr. Oliver—was Argued Dec. of the taint result sufficient attenuation entry, ar- from the the unlawful warrantless April Decided rest, justify seizure of the admissibility of confession. See Brown

Illinois, (1975). Consequently,

L.Ed.2d 416 I would

grant suppress, appel- the motion to reverse convictions, further

lant’s and remand for

proceedings opinion. consistent identification, disagree my col- and take issue with subsequent has no of First, musings asserting leagues' Ante at in- about these decisions. is not merit. Here, asserting baby's rights; -n. out-of-court identifi- fant’s Fourth Amendment she maintaining through rights clearly exploitation in custo- her own control and obtained cation Place, Sun, dy illegal ‍​​​‌​‌​‌‌​​‌‌​​​​​‌‌‌‌‌‌‌‌​‌‌‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‍entry, Wong the child. United States v. 462 primary 371 see 696, 2637, (1983) 417, 487-88, S.Ct. 77 110 U.S. 103 L.Ed.2d and was not at U.S. at 83 S.Ct. (seizure luggage prob- entry. for 90-minutes without purpose of all attenuated from Second, unreasonable). Ceccolini, 276-78, cause is the Su- able Compare 98 S.Ct. 435 U.S. at repeatedly recognized

preme (witness’ has one's Court testimony be- not excluded at 1060-61 unlawfully right challenge goods seizures of testifying in free will cause witness exercised Hicks, 321, possessed. See 480 U.S. testimony perpetually dis- would exclusion of Andreas, (stolen goods); U.S. 1149 Illinois v. 463 testifying mate- about relevant and able her from 765, 3319, (1983) 77 S.Ct. L.Ed.2d 1003 regardless testi- of how unrelated such rial facts Hayden, (drugs); 06, 305- Warden 387 U.S. illegal original mony might purpose be to (1967) L.Ed.2d Crews, search); S.Ct. at 445 U.S. at ("we given recognition to the interest (in-court sup- need identification prop- despite complete privacy absence of unlawful arrest pressed as fruit of defendant's suppressing very erty items which claim identity knowledge police’s of defendant’s impunity”). law could be seized common of defen- independent recollection and victim's applies allegedly rule to an stolen No different are un- arrest and dant the unlawful antedate baby. Furthermore, it). enforcing the exclu- tainted sionary situation will deter rule contends that even if also future. unconstitutional, proceeding in this manner the identification Ceccolini, 98 S.Ct. at 1062 under United States the Ceccolini, is admissible Cfi ("Application exclusionary in this rule Crews, slightest (1978), deterrent could not have the situation and United States v. L.Ed.2d 268 behavior). the officer’s effect” on 63 L.Ed.2d

Case Details

Case Name: Oliver v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Apr 13, 1995

Citation: 656 A.2d 1159

Docket Number: 92-CF-61

Court Abbreviation: D.C.