17 F.3d 399 (D.C. Cir. 1994), 91-3247, United States v. Dawkins

Docket Nº:91-3247.
Citation:17 F.3d 399
Party Name:EFRAIN UNITED STATES of America, Appellee, v. Andre DAWKINS, Appellant.
Case Date:March 11, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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17 F.3d 399 (D.C. Cir. 1994)


UNITED STATES of America, Appellee,


Andre DAWKINS, Appellant.

No. 91-3247.

United States Court of Appeals, District of Columbia Circuit

March 11, 1994

Argued Jan. 28, 1994.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (Criminal No. 89-00482-01).

Robert S. Becker, Washington, D.C. (appointed by the Court), argued the cause and filed the briefs, for appellant.

Catherine C. Pisaturo, Asst. U.S. Atty., argued the cause for appellee. With her on the brief were J. Ramsey Johnson, U.S. Atty., John R. Fisher and William M. Blier, Asst. U.S. Attys.

Before WALD, HENDERSON and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Andre Dawkins appeals his convictions for unlawful possession with intent to distribute a detectable amount of cocaine base in violation of21 U.S.C. Sec. 841(a)(1), using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c), and unlawful possession of an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d). Dawkins contends principally that the trial court erroneously refused to suppress evidence obtained during a warrantless search of his apartment. Because we agree that the circumstances in this case did not bring the entry and sweep of Dawkins' apartment within existing exceptions to the warrant requirement, we reverse.


The material facts in this case are not in dispute. On the afternoon of November 12, 1989, the police received a call from a woman who volunteered information that Andre Dawkins, whom she indicated was an escapee from a juvenile detention facility, had drugs and guns in his residence at 1902 Savannah Terrace, S.E., Apartment 104. The woman identified herself as Katrina McEachin, a former girlfriend of Dawkins, and stated that she had observed the contraband first-hand. McEachin gave the police a detailed description of Dawkins, including a scar on his head and a scar or dog bite on his leg. She indicated that the police could find Dawkins at 2000 Savannah Terrace, S.E., Apartment 301. Uniformed officers went to Apartment 301, but received no response to their knocks. The officers left the premises.

Minutes later, McEachin called the police again, informing them that Dawkins had just contacted her and threatened to kill her for making the initial call to the police. McEachin told the police that she knew Dawkins was still in Apartment 301, because she had called him there after his threat and he had answered the phone. Several uniformed officers returned to Apartment 301. Detectives Curley and Zattau joined them shortly thereafter, after confirming that Dawkins had in fact escaped from a juvenile detention facility. 1 An occupant of Apartment 301 claiming to be "James Boyd" fit the general description provided by McEachin. The police detected a scar on his head, but were unable to locate a scar or dog bite on his leg. 2 After a few moments, Detective Zattau left the apartment to call McEachin, who was at her home, to determine whether Dawkins had a key to Apartment 104. She indicated that he did. Detective Zattau then reentered

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the apartment and asked "Boyd" to reveal the contents of his pockets. "Boyd" pulled out some money and a key. He had no identification. Upon questioning, "Boyd" claimed that he had found the key in front of the apartment, and he gave Detective Zattau permission to keep it. An older man, who identified himself as "Mr. Boyd," arrived at Apartment 301 and identified the younger man as "James Boyd," his son, who resided in Apartment 301.

Detectives Zattau and Curley and two uniformed officers left Apartment 301 and proceeded to Apartment 104, which was a little more than 100 yards away. 3 Other officers remained at Apartment 301 for a brief period before leaving. At Apartment 104, the police knocked on the door and stated their purpose. They received no response and could not hear any sounds emanating from the apartment. Detective Zattau inserted the key taken from "Boyd" into the lock. It fit. The police unlocked and opened the door, again announced their presence, and again received no response. All four officers then entered the apartment and walked through it for two minutes, inspecting the premises for the professed purpose of determining whether Dawkins was there or whether any other person was present who might destroy evidence. See Motions Transcript ("Tr.") at 16, 23. The police did not open any interior doors or drawers. In the back bedroom, two officers observed the butt of a magnum-type revolver and the frame of what appeared to be a 9mm handgun on a shelf in an open closet, where McEachin had said they would be found. The police also found a photograph of the man they had questioned in Apartment 301. They radioed fellow officers to arrest Andre Dawkins, alias "James Boyd," for threatening Katrina McEachin. Dawkins was subsequently arrested on the street outside Apartment 301.

Two uniformed officers remained on site at Apartment 104 to secure the apartment, while the others left to get a search warrant. The affidavit supporting the warrant described both McEachin's tip and the corroborating evidence observed during the sweep of Apartment 104. The police executed the warrant the next day. The search proved fruitful, uncovering a 12-gauge sawed-off shotgun, a .357 magnum revolver, a broken 9mm semiautomatic pistol, a .38 caliber handgun, a shoulder holster for the .357 revolver, and an abundance of ammunition for all four of the weapons. In addition, officers seized a candy tin that housed numerous small ziplock bags containing 3.55 grams of crack cocaine. Police also recovered photographs of Dawkins and McEachin, men's clothing, and a receipt for a rug in the name of "Boyd" from several weeks before.

The trial judge denied Dawkins' motion to suppress evidence seized in Apartment 104 after a hearing on July 13, 1990. Describing what had transpired as "a very unique escalating situation," Tr. 65, the judge found that the police had entered Apartment 104 reasonably under exigent circumstances. The judge placed special emphasis on the officers' obligation to identify and subdue Dawkins, given the alleged threats against McEachin's life. At the subsequent trial, at which the challenged evidence taken from Apartment 104 was admitted, the jury convicted Dawkins on all counts. Dawkins filed this timely appeal.


It is a "basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980) (citing Coolidge v. New Hampshire, 403 U.S. 443, 474, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564 (1971)). 4 When an

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individual's right to privacy in his home "must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948); see also Dorman v. United States, 435 F.2d 385, 389 (D.C.Cir.1970). In the clearest of terms, "the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton, 445 U.S. at 590, 100 S.Ct. at 1382; see also Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 2098, 80 L.Ed.2d 732 (1984); Steagald v. United States, 451 U.S. 204, 212, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970); United States v. Socey, 846 F.2d 1439, 1444 (D.C.Cir.), cert. denied, 488 U.S. 858, 109 S.Ct. 152, 102 L.Ed.2d 123 (1988).

The government has to surmount two hurdles in order to justify its warrantless search of Apartment 104. First, it must demonstrate the requisite level of suspicion to enter and/or sweep the residence. All searches of the home, whether by warrant or pursuant to a recognized exception, must be supported by some form of probable cause. See Arizona v. Hicks, 480 U.S. 321, 327-28, 107 S.Ct. 1149, 1153-54, 94 L.Ed.2d 347 (1987); Socey, 846 F.2d at 1444 n. 5; see also United States v. Johnson, 9 F.3d 506, 509 (6th Cir.1993); United States v. Howard, 828 F.2d 552, 555 (9th Cir.1987); United States v. Cresta, 825 F.2d 538, 553 (1st Cir.1987), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988). This requirement stems from the fact that an exception to the warrant preference rule excuses the government only from the necessity of going before a magistrate; it does not alter the underlying level of cause necessary to support entry. Second, the government must demonstrate that its failure to procure a warrant was justifiable in light of circumstantial exigencies. See Welsh, 466 U.S. at 750, 104 S.Ct. at 2098; United States v. United States District Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 2137, 32 L.Ed.2d 752 (1972). The government urges in this case that ample corroboration of McEachin's tip provided probable cause to enter Apartment 104 and that the need to find Dawkins and to secure destructible evidence justified the officers' warrantless sweep. We address these contentions in turn.

  1. Probable Cause

    The government relies on "a unique combination of circumstances"--Dawkins' status as a fugitive, the fact that he had allegedly threatened McEachin, and the likelihood that destructible or dangerous evidence would be found within the apartment--in support of its claim that exigent circumstances excused the officers' warrantless entry. See Appellee's Brief at 22. For purposes of the underlying probable cause...

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