*1 test, Applying Brady appellant’s option provided the circumstances.” The rejected, for contentions must be there is no neither redress.the appellant served con- print showing palm that second was in negligence government ceded of the nor to any exculpatory. Appellant argues way deter it in the future. hold that the We pretrial proper that if disclosure had been its thereby trial court abused discretion in made, could been exemplars obtained did. prescribing sanction it of the of the from palm prints victim whose determined, we Having so turn prints car the latent were lifted. If these prejudice, next to the issue of for not every match prints print, did not the second latent by applying error the trial court in sanc argument appellant’s goes, so his defense requires tions under Rule 16 reversal. It is persons that other than he were involved such only substantially preju where error is would have been buttressed. Since automo appellant’s dicial to an that reversal rights biles generally exposed public contact Arcentales, justified. v. use, in the normal course of their the fact Hansen v. presence of the on the car anof unidenti States, supra. overwhelming palm print fied of someone other than ap case, strength government’s coupled pellant and the owner be of would doubtful with the fact that the government could evidentiary materiality'to relevance and exemplars have properly appel obtained issue guilt appel of the or innocence order, palm prints lant’s by court Schmer it Clearly, lant. would tend to excul California, ber v. S.Ct. pate identifica light positive him in (1966), 16 L.Ed.2d lead us to con other palm print tion of his as the latent beyond clude doubt that reasonable there short, from print lifted the car. was no substantial prejudice appellant’s argument simple appellant’s answer rights that error harmless. by that under the disclosed circumstances California, evidence, Chapman proof even someone else that 824, 17 was involved in the theft would not have (1967).7 tended to that he not. prove also Appellant contends that Affirmed. government’s failure to in a produce timely fashion the repeatedly-requested prints vio process
lated his as rights explicated due
Brady Maryland, supra. Appellant as
serts that although palm prints one of his, shown the fact the other
palm was not print identified constituted matter within the
exculpatory meaning STATES, Appellant, UNITED Brady. specific Given his timely pre demand, trial we test his contentions Joseph Katherlean COVINGTON and W. (whether principles Brady the nondise- Bailey, Appellees. material, losed evidence was favorable to No. 12069. accused, and might have affected the trial) outcome of the than the rather test Appeals. District of Columbia Court of applicable where only general demand or Argued Oct. made, no demand is v. Agurs, United States 23, 1978. Decided March L.Ed.2d 342 (1976) (whether the evidence omitted cre
ates a reasonable doubt in mind of the exist).
court which otherwise would not properly any government’s comply We note the record to disclose failure to fails demands, request discovery court trial counsel to have Rule is a factor it we complaining palm prints evaluating appropriate witness’ taken deem to consider in government’s expert compared prejudice with the issue substantial flowed whether way duty. government’s latent lifts. While this in no excuses violation of its *2 Anthony T. Terry John A. Atty.,
S. D. Podesta, Attys., Washington, U. Asst. S. brief, C., appellant. for were C., McKenna, Washington, D. R. Edward Covington. appellee for Herman, Public Defender William R. Ser- C., Bailey. vice, Washington, appellee D. KERN, GALLAGHER Before MACK, Judges. Associate GALLAGHER, for the court Opinion Judge. Associate GALLAGHER, Judge: Associate Detective Peter September On from the Pressley and other officers Sev- Metropolitan of the enth District Vice Unit Apartment 1—A Department went to Police Southwest, Street, to exe- Irvington warrant, validity of which cute a search under attack here. is not The warrant authorized search of illegal drugs. One of the offi- premises Appellee knocked on the front door. cers open- came to the door and without Bailey it, you asked either “Who do want?” Bailey, According is it?” the offi- “Who cer asked whether there “was a resident El- living at that address name of “no, Bailey he then said testified liott.”1 it. away, and walked that was turned hinges.” The door came off the Detective question stated after the Pressley e., (i. on the other side person away from the door Bailey) “began to move motion, time, ser- at which in a fast Johnson, identity, Sgt. announced his geant, Bailey authority.” testified this announcement. that he did hear Pressley, the offi- According to Detective thirty seconds after waited fifteen to cers response no the announcement with breaking before down inside the At he saw one of point this door. running down apartment’s occupants Detective hall and the bathroom. Bruce, having occupant, Carol E. Wash- Atty., Pressley, Asst. U. S. chased Silbert, “tinfoil, a white ington, C., grab containing D. U. with whom Earl J. able people According Pressley, that the inside on the other he had reason believe to Detective hand, responded of.” officer with “a name knew powder” from the peephole toilet before it was so they can’t be viewed. I flushed down. He also testified that can’t imagine why they would do that. “[a] ****** further search of the premises revealed nar- cotic paraphernalia, a quantity marijua- I imagine can’t what their purpose would na, pistol.” and a be in It deception. deception is obvious *3 granting appellees’ part police. motion to the suppress Certainly —I evidence, think government’s Magistrate don’t authorized de- the trial court ception. concluded that the police officers’ illegal. Although the court did not make any explicit factual findings to aid us in our the things One of I am not satisfied with review, the apparently court based its rul- is that we got open why never out in the proposition on the the police had police would do that. Why would used the purpose ruse for the of breaking police deceive when they a search apartment into the gain- than for —rather warrant, warrant? A my valid search in ing entry peacefully. We think that judgment, by judge Magis- issued or trial court reached this conclusion because trate. And they go are authorized to of a misunderstanding legitimate an apartment and search and seize. Why purposes of ruses and law concerning they would deceive the people inside? their use by police. government The ap- What purpose by would be served deceiv-
peals under 23-104(a)(l). D.C.Code § ing? The preoccupation court’s with pro- We are aware that our review must priety police of ruses apparently appellees legitimate afford “all inferences obscured the being presented issue for deci- from the testimony and uncontroverted why sion. The issue was much not so States, record,” Jenkins v. United facts of ruse, police police used the whether the but D.C.App., (1971); A.2d complied legal gov- had with the standards that we must accept the inferences drawn erning right apart- their to break into the it, the trial court as to the facts before if ment. The issue should be approached are “supportable under any reasonable that, recognition with a being armed view of the evidence.” Searbeck United warrant, standing valid search while out- States, 115 U.S.App.D.C. side the door the officers had reasonable (1963), 83 grounds to believe there in- were narcotics (1963); accord, L.Ed.2d 1077 -accompanied side the in all — States, Brooks v. United D.C.App., 367 A.2d probability by drug one or more traffickers. States, v.Ward United (1976); The governing standards con- D.C.App., A.2d 381 n.3 We duct here are derived from 18 U.S.C. § consider the trial court misunderstood the (1970) (hereinafter as cited which law, however, consequently the order provides that must be set aside. D.C.Code See open any officer break outer or [t]he 17-305. house, inner or any door or window of the The following statements of the trial therein, part house, of a anything court illustrate its misunderstanding of the warrant, if, execute a notice search after concerning police law use of ruses —as well purpose, of his he is refus- as legitimate purposes: their necessary ed to liber- admittance or when in the person aiding ate himself or a him police] . . . have a valid [The the warrant. execution of search warrant for a particular premises of going up saying, instead there and required The standards of conduct “We’re the we have a search war- judicially recog- were under this statute rant, door”, please open they say, applicable officers nized Miller v. United Elliott”, “I’m and hold their hand over the District of Columbia. ruse fulfills (1962). This sort of L.Ed.2d 88 301, 306, consistent all of which (1958).2 several purposes, the announcement purposes with the is to of these purpose The confronta- obtaining peaceful By rule. right privacy “the individual’s protect ” a successful through occupant tion with “safeguard . . . and to his house warrant, a search to execute in order might who themselves . enter, forcibly the need to obviate aby and be shot prowlers be mistaken for ” such property damage private eliminate Miller v. householder. . . . fearful door, the likelihood reduce as the at 313 & n. supra evi- destroy will be able to was dis- (1958). The trial court at 1198 flee, against dence, or arm themselves frustrat- that this would be turbed unsuccessful, e., i. If the ruse is officers. deception. ed here officers’ then gained, peaceful following statement of the court illustrates *4 with complying still have the alternative this: require- appropriate announcement See, purpose there has to some ments. announce requirement our being
themselves and their
purpose
one,
courts, including this
A number of
for that.
there. There has to be a reason
gain
a ruse to
the use of
approved
have
I think it is clear the reason is to advise
that where
They have held
peaceful entry.
and what
people
inside who is outside
a warrant
whether armed
is,
people
their
to
purpose
permit
peace
gain
to
not,
a ruse
employed
decision, whether to
inside to make some
house, no “break
person’s
into a
ful
in,
let them
or make
open
door and
meaning of
within the
ing” occurred
it,
prepared
some decision about
or to be
no an
and therefore
statute
announcement
or otherwise for what
emotionally
purpose
nouncement
happen.
about to
(John) Jones
g.,E.
prior
entry.
required,
Now,
that,
they
if they don’t do
—if
535,
States,
A.2d
D.C.App., 336
v. United
Chester,
purpose
this is
the whole
say,
997, 96
denied, 423
(1975),
U.S.
538
cert.
frus-
requirement
the announcement
(1975); (Cecil)
427,
372
46 L.Ed.2d
S.Ct.
trated, I think.
States,
U.S.App.
113
supra,
Jones v. United
384;
17,
F.2d at
United States
manifestly
The
of the ruse
was D.C. at
304
purpose
796,
(8th Cir.
Raines,
800
dwelling
to deceive the
of the
v.
536 F.2d
327,
925,
50
97 S.Ct.
denied, 429
opening
thereby permitting
into
U.S.
door—
v. De
(1976);
293
United States
officers to obtain
without
L.Ed.2d
1976), cert.
Feis,
14,
(5th Cir.
530 F.2d
15
Supreme
approved
force. The
Court has
92,
830,
50
denied,
97 S.Ct.
.
429 U.S.
stratagem
the use of
“[a]rtifice
Beale, 445 F.2d
v.
(1976);
enter
95
United States
engaged
to catch those
in criminal
'
denied, 404
1971), cert.
States,
977,
(5th
287
Cir.
978
prises.” Sorrells v. United
676
697, 30 L.Ed.2d
1026,
435, 441,
210, 212,
77 L.Ed.
S.Ct.
68,
430 F.2d
Syler,
v.
(1972);
States
the use of
United
(1932).3
applies
This also
Craven, 409
1970); Ponce v.
States,
(7th
113 70
(Cecil)
ruses.
Jones
United
384-85,
1969)(considering an
621,
(9th
17-18,
381,
304 F.2d
announcement
identical California
almost
ert.
371 U.S.
c
Rep.
Report,
93-
R.
No.
Express
statutory
governing
H.
D.C.
See Conference
standards
(1974).
Cong., 2d Sess. 5-6
in effect
93d
in such situations were
conduct
through 1974 under D.C. Code
from 1970
repealed,
Furthermore,
Supreme
Act
has ac-
23-591. That statute was
Court
§
26, 1974,
93-81,
4(a),
activity
knowledged
Pub. L. No.
is such
Oct.
that “[c]riminal
3, 1975,
weap-
necessary
as amended
strategy
Jan.
Stat.
Act of
are
that stealth
93-635,
Sher-
and the
88 Stat.
Pub. L. No.
of the
officer.”
ons in the arsenal
States,
369, 372,
judicially
governed
United
same
man v.
D.C.
819, 820,
recognized
before 1970.
standards
that existed
2 L.Ed.2d
statute).
Coiner,
primarily
because
Contra Bowers v.
occurred
the ruse
F.Supp.
(S.D.W.Va.1970).
At
was successful
therefore
announce-
least two cases have held the police entry
not come
play.
ment
did
illegal
the police
where
used a ruse to at-
however,
Here,
the ruse
unsuccessful.
tempt
peaceful
gain
then
entry,
ap-
but
The trial court’s
apparently
conclusion
plied
prevent
force
being
the door from
reading
stems
a narrow
of Jones as
closed on
g.,
them. E.
Miller
as a lack
appreciation
well
of the valid
States,
supra; Gatewood v. United
purposes
such ruses.
98 U.S.App.D.C.
228-29,
209 F.2d
We
trial
agree with the
court that a
(1953).4
791-92
The critical factor in each
of the
announcement statute is to
cases, however,
those
was that the
give the occupant
opportunity
an
to re
used
prevent
force to
being
door from
either
spond,
affirmatively or negatively.
closed without
first
their
announcing
au-
this does not
But
mean
officers must
thority
purpose.
Id.
for a
response by
wait
definite
the occu
The trial court here was
aware
pant, as
there will
frequently
be none.
(John)
decision in
Jones v. United
Rather, the
announce
police must
their au
supra.
case
the ruse was successful.
thority and
then
purpose and
wait until
officers had search warrant and went
reasonably
they have been
re
believe
an
knocked on
door.
fused
admittance.5
When someone from inside
ask-
responded,
Woodring,
*5
there,
gave
who was
one of the officers
States,
332
McClure
United
F.2d
22
a name and asked for
who was
someone
States,
(9th
1964);
Cir.
cf. Martin v. United
believed to be inside. The
inside
person
(5th
United
opened the
several
inches and one of
West,
(2d
1964).
328
18
F.2d
the officers pushed open the door even fur-
Footsteps
in a
direction
going
reverse
entered,
ther and
the
then
officers all
an-
request
be
to believe the
to enter
grounds
nouncing
they
that
were
and had a
rejected.
has been
McClure
search warrant. That
approved by
the
States, supra at 22.
court as
involving
breaking.
not
a
Id. at
538.
The trial
task here is to de
Although the trial court here was
court’s
police,
entry:
aware of
termine if the
to forcible
holding,
prior
the circumstances of the
it distinguished
(1)
authority
purpose,
that case
situation
announced their
and
from the
here
breaking by
(2)
they
because there was
the
had
reasonably
no
and
believed
been
police in Jones. What
failed to
the trial court
the court
refused admittance. Since
note
in
findings,6
was that
Jones the reason no break-
no such
we must re-
has made
specifically
4.
Neither of these cases
found the
1
entry
(1965).
to be unlawful as a violation
However,
applied
standards
the
to
virtually
conduct
in
case
each
were
identical
to
Appeals
stated in
6.As
D.C. Circuit Court
of 3109. See Miller v. Unit-
States, supra,
U.S.App.
Masiello v. United
States,
1190;
supra,
ed
357 U.S. at
at
in connection
at
D.C.
States, supra,
U.S.App.
Gatewood v.
“importance
compliance
for the
its concern
D.C. at
Once the break warrant execute search applicable. U.S.C. Judge became § if, after pur- McGowan of the notice his District of Columbia feder- pose, al circuit court of “he is No- appeals helpful made a refused admittance.” analysis recently of where is there any long the “refused admit- definition of how tance component” of the statute providing giving officers must wait the statu- after entry: forceful tory of authority purpose. notice statute, The purpose among
As
other
recog
this and other courts have
nized,
things,
open
occupant
is to allow the
compo
“refused admittance”
legally
nent of 18
door to admit
who
U.S.C.
3109 stands on a
officers
practical footing
different
they may
the other
authorized
enter so that
exe-
requirement of
[police]
“notice of
authori
cute their duties with the
possible
least
ty
purpose.”
latter,
To establish the
inconvenience to
occupant.
But the
proof
there must be
of affirmative action
phrase “refused admittance”
not re-
whereas in
case of the
an
stricted to
affirmative
In-
refusal.
former, particularly in the narcotics con
deed it would be an
coming
unusual case
text, explicit verbal response
hardly
before the courts
an
af-
occupant
where
expected.
In such
circumstances
firmatively “refused admittance” or oth-
be,
statute
only
can
is properly,
but
satis
erwise
verbally
made his refusal known
fied
evidence of non-verbal conduct
given
after being
pursuant
notice
lack
indicating of purpose promptly to
Where,
here,
giving
after
as
respond
to the
announcement.2
required notice the
hear sounds
officers
*7
regard
1 A recent statement
law in this
which indicate to
that the evidence
them
Ortiz,
is contained in United
States
sought
process
be in
by the warrant
n.(8th
destruction,
execution
the warrant
(1971):
designed to lure the door; indeed, trial court
from,
seems have concluded heard the an- door and
came 19). However, (Record at
nouncement ef- specific finding no to this
court made Moreover, no trial court made
fect. made
explicit finding on whether which the
an announcement of per- forcible requires
statute before
mitted. arguable that on this certainly
While it is showing both a of announcement
record refusal of admit-
purpose subsequent at prosecution made
tance have been hearing, I think we should suppression approving forcible especially careful warrants; search in- executing
entries in
deed, us Supreme Court has reminded requirement
“The notice of authori- prior
ty forcing before heritage deeply
home rooted our given grudging application.”
should not be
Miller v.
Accordingly, join I in the remand ordered majority for further proceedings
which criteria can be statutory specif- these determined.
ically expressly considered GREEN,
Dorothy Appellant, M. *8 NEWMAN, Appellee.
Nadine V.
No. Appeals.
District of Court of Columbia
April YEAGLEY, NEBEKER,
Before in chambers. FERREN, Judges, Associate