153 F.3d 759 (D.C. Cir. 1998), 96-3167, In re Sealed Case 96-3167

Docket Nº:In re SEALED CASE 96-3167.
Citation:153 F.3d 759
Case Date:September 04, 1998
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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153 F.3d 759 (D.C. Cir. 1998)

In re SEALED CASE 96-3167.

No. 96-3167.

United States Court of Appeals, District of Columbia Circuit

September 4, 1998

Argued Oct. 10, 1997.

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[Copyrighted Material Omitted]

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[332 U.S.App.D.C. 86] Appeal from the United States District Court for the District of Columbia (No. 94cr00080-01).

Santha Sonenberg, Assistant Federal Public Defender, argued the cause for appellant, with whom A.J. Kramer, Federal Public Defender, was on the briefs.

Mary T. O'Connor, Assistant U.S. Attorney, argued the cause for appellee. Mary Lou Leary, U.S. Attorney, John R. Fisher, Steven J. McCool, Steven D. Mellin, and Elizabeth H. Danello, Assistant U.S. Attorneys, were on the brief.

Before: SILBERMAN, RANDOLPH and GARLAND, Circuit Judges.

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[332 U.S.App.D.C. 87] GARLAND, Circuit Judge:

The defendant in this case was charged with six related offenses, including unlawful possession with intent to distribute cocaine base, and using or carrying a firearm during and in relation to a drug-trafficking offense. After losing a motion to suppress evidence seized from his house, the defendant entered a conditional plea of guilty to the cocaine and firearm charges. Based on the defendant's substantial assistance to law enforcement, the government filed a motion for a downward sentencing departure, below the otherwise applicable statutory mandatory minimums and sentencing guidelines ranges. The district court granted the motion and sentenced the defendant to two concurrent five-year terms of probation.

On appeal, the defendant contends the evidence obtained from his house should have been suppressed because it resulted from a warrantless entry that was not justified by either the "hot pursuit" or "exigent circumstances" exception to the warrant requirement, and because the subsequent search of two bedrooms was not justified as either a "search incident to arrest" or a "protective sweep" of the premises. The defendant further contends that the district court should have vacated his conviction on the firearm charge because of the Supreme Court's intervening decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which held that only firearms that are "actively employed" satisfy the "using" prong of the "using or carrying" a firearm offense.

We reject both contentions and affirm the defendant's convictions.

I

In the early evening of February 22, 1994, Metropolitan Police Department officers William Riddle and David Wilber were driving in an unmarked police car through a residential neighborhood in northeast Washington, D.C. Although it was dark outside, the street was well-lit with high-intensity streetlights. The officers observed the defendant running or "walking quickly" down the street. Appellant's Appendix ("App.") at 47. Neither knew the defendant, and neither knew where he lived. They also did not know whether he was armed.

Proceeding in their car, the two officers followed the defendant until he came to a house. Neither officer knew who lived in the house. They watched as the defendant ran up a path leading to the front door, opened the outer screen door, and "struck the wooden door ... with his shoulder in such a force that ... it appeared ... he was forcing the door open." Id. at 41. The officers stopped their car and approached the house to investigate. Officer Riddle went to the front, while Officer Wilber went to the back.

Riddle saw that the front door was damaged and that there was "a break in the door around the lock area, which further led [him] to believe that the house was being burglarized." Id. at 42. In fact, "the wood around that lock [was] broke[n] completely off the door." Id. at 46. He also noticed there were no lights on in the downstairs area of the house, despite the fact that the defendant had just entered and it was dark inside. Riddle loudly and repeatedly announced that he was a police officer, but received no response. After again announcing his presence, Riddle tried to push on the front door. Someone immediately pushed back from the other side without saying anything. This pushing back and forth lasted approximately five to ten seconds, after which the pushing on the other side stopped and Riddle could hear footsteps away from the door. Based on what he had seen, Officer Riddle "believed that someone was burglarizing the house with the intent to either steal an item or injure someone within the house." Id. at 43.

After again identifying himself as a police officer, Riddle entered the house. Inside, Riddle saw the defendant running up a flight of steps. The officer chased the defendant up the stairs and into a large, darkened bedroom. Once there, Officer Riddle saw the defendant "standing sideways" to the door, and facing "an extremely dark corner of the bedroom." Id. at 49. Repeatedly calling out his identity as a police officer but receiving no answer, Officer Riddle pointed his weapon at the defendant and instructed him to show his hands. Before ultimately complying, the defendant's "hands came away from his body around his waist area, went into a dark corner of the bedroom, then

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[332 U.S.App.D.C. 88] came back toward the middle of his body, and at that point he showed [Riddle] his hands." Id. at 49-50. Amidst his shouted instructions, Riddle did not hear anything hit the floor.

Officer Riddle then led the defendant into the hallway, patted him down for weapons, took him downstairs to the first floor, and handed him off to other officers who had just arrived. The defendant was not handcuffed. Riddle immediately returned upstairs to the large bedroom. Unable to turn the light on, Riddle used his flashlight. In the darkened corner, "where [defendant] was standing next to, and then his arms and hands had went into," Riddle discovered "laying in a chair, a plastic bag, which appeared to have busted open, or come open in some manner, and several large white rocks," id. at 51, later identified as crack cocaine. On the floor beside the chair was a semiautomatic handgun. The gun was lying "on top of a pair of shoes, and I believe a handbag, or some type of soft object." Id. at 63.

Upon finding this evidence, Riddle went directly back downstairs and handcuffed the defendant. Thereafter, Riddle and other officers "made a cursory exam of the house ... to look for any other subjects that might have been in the house, as in somebody that lived there, or a small child that might have been scared by all the ruckus, in a closet or hiding, for any other victims that might have been in the house." Id. at 55-56. As he entered the small bedroom on the second floor, adjacent to the room in which he had apprehended defendant, Riddle saw a clear plastic bag containing white rocks sitting on a television stand. On the same stand was a triple-beam scale. Like the others, these white rocks were later identified as crack cocaine, and Riddle testified that the scale was of a kind "commonly used by narcotics distributors for the purpose of the weighing in and out of narcotics." Id. at 56-57. The officers also recovered from the defendant's person a pager, which later investigation disclosed had received over 800 calls that month.

After completing the search, and while filling out arrest paperwork, Riddle asked the defendant his address. The defendant gave an address different than that of the house in which he was arrested. The police did not learn until later that the defendant actually lived in that house.

The defendant moved to suppress the evidence seized from his house. The district court first found that the police had probable cause to arrest the defendant for burglary, based on the fact that the defendant appeared to have broken open the door, that the defendant had not responded when Officer Riddle announced he was a police officer, and that he had pushed back on the door when Riddle attempted to enter. Id. at 179. The court also concluded that the warrantless entry into the defendant's house was justified under the "hot pursuit" exception to the warrant requirement suggested by the Supreme Court in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Accordingly, the district court found it was "unnecessary" to consider "whether warrantless entry also was justified under exigent circumstances," pursuant to Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970). See App. at 180-81.

The district court further held that Riddle "had a reasonable basis for pursuing the defendant up the stairs and into the large bedroom," and that the items recovered from that large bedroom were lawfully "seized incident to the arrest." Id. at 180. Finally, the court held that the items found in the other bedroom were in plain view and seized as a part of a valid "protect[ive] sweep" under Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Accordingly, the district court denied the defendant's motion to suppress. 1

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[332 U.S.App.D.C. 89] After the denial of his motion to suppress, the defendant entered a conditional plea of guilty to the cocaine and firearm charge. Following the Supreme Court's decision in Bailey, and before his sentencing, the defendant moved to vacate his conviction on the firearm charge. The district court denied the motion, holding that the defendant had admitted that he used "and carried" the firearm, and that this was sufficient becauseBailey had not changed the law relating to the "carried" prong of that offense.

II

In order to determine whether the evidence in this case was lawfully seized, we must first consider whether the warrantless entry and arrest in the defendant's home were valid, and then consider whether the subsequent warrantless searches were proper. We consider the former issue in this Part, and the latter in Part III below.

"It is axiomatic that the physical entry of the home is the chief evil...

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