U.S. v. Johnson, 73-2221

• Decision Date: 20 June 1977
• Docket Number: No. 73-2221,73-2221
• Parties: UNITED STATES of America v. Ralph JOHNSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 832

561 F.2d 832

182 U.S.App.D.C. 383

UNITED STATES of America v. Ralph JOHNSON, Appellant.

No. 73-2221.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 14, 1975.

Decided Jan. 12, 1977.

Certiorari Denied June 20, 1977. See 97 S.Ct. 2953.

On Rehearing En Banc.

Michael E. Geltner, Washington, D. C. (appointed by this court), for appellant. Monica Gallagher, Larry J. Ritchie, Washington, D. C., Phillipe Dumont ^* and Arthur Grushkow Sapper * were on the brief for appellant.

Stuart M. Gerson, Asst. U. S. Atty., Washington, D. C., for appellee. Earl J. Silbert, U. S. Atty., John A. Terry, James F. McMullin, Timothy J. Reardon, III and Barry L. Leibowitz, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before BAZELON, WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB, and WILKEY, Circuit Judges sitting en banc.

Opinion for the court by Judge McGOWAN, in which Judges WRIGHT, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB, and WILKEY join.

Separate concurring statement by Judge WRIGHT.

Separate concurring opinion by Judge LEVENTHAL, in which Judges WRIGHT and ROBINSON join.

Separate concurring opinion by Judge MacKINNON.

Dissenting opinion by Judge BAZELON.

McGOWAN, Circuit Judge:

The central issue in this appeal of a conviction for possession of narcotics (33 D.C.Code § 402) is the propriety of the denial by the District Court, after evidentiary hearing, of a pretrial motion to suppress evidence. The police, confronted visibly with a major narcotics violation in progress, ultimately made a warrantless entry into the house where such violation was taking place, and the evidence in question was forthcoming in the course of the ensuing arrests and searches. The District Court, in ruling against the motion, avowedly took into account the fact that the police, initiating the procedures to obtain a warrant, received legal advice to proceed without one because, in the special circumstances here involved, the delay necessarily inherent in getting a warrant seriously jeopardized the public interest in effective law enforcement. On the record as made, we agree with the District Court that the Government met its burden of showing that the police conduct was reasonable within the meaning of the Fourth Amendment, and affirm the conviction. ¹

I

We look to the evidence adduced at the suppression hearing. On the first day of that hearing (October 19, 1973), the witness presented by the Government was Officer Simms, of the Metropolitan Police assigned to narcotics investigation, who testified to the following effect.

Not long after 1:00 A.M. on June 14, 1973, Simms was informed by Sergeant Andrews that the Department had just received a telephone call from a person who stated that a large quantity of narcotics was present in the basement of 2918 28th Street, N.W., and that it was visible through the lighted basement window on the right hand side of the front of the house. ² Simms and his partner, Officer Betts of the Narcotics Squad, immediately set out to investigate this report. Not being familiar with the area, they had difficulty finding the house in question arriving there a few minutes after 2:00 A.M. They first circled the house by driving down an alley along one side of the house, observing a '72 or '73 Cadillac car parked in the driveway As they did so, Simms observed that, although the rest of the house was dark, there was a light in the right front basement window as reported in the telephone call. With a purpose either to confirm or negate that report, he stepped off the walk to his right a distance which was later finally established by questioning of the court to be from two to three feet and looked through the window for not more than 10 seconds. What he saw was the basement bedroom with three men sitting at a table. On the table was a "cutting mirror" and other narcotics paraphernalia used in preparing narcotics for distribution. On the mirror was a pyramid of white powder eight to ten inches high. Simms immediately realized that he was seeing the packaging for sale of a major amount of narcotics (later valued at trial as worth at least $85,000).

at the rear of the house. Completing this reconnaissance, they parked parallel in the street in front of the house, and went up the walkway to the door.

Facing what he believed to be a dangerous situation because of the high stakes and the number of persons seen through the window, Simms concluded that it was not practicable to force entry at that time. He and Betts withdrew to their unmarked cruiser where they endeavored to reach their superior officer, Yates, by radio call to the car in which Yates was on duty. This effort was not successful for technical reasons, and they thought it risky, in terms of alerting the inmates of the house to destroy the narcotics, to summon a regular marked cruiser with uniformed police. They immediately proceeded to Headquarters where Simms was able to reach Yates by telephone. It was agreed that Simms and Betts would meet Yates and his partner, Ponzelli, at a rendezvous point (Connecticut and Wyoming Avenues) before returning to the 28th Street house.

While at Headquarters Simms raised the question of getting a search warrant with his superior officers. Lieutenant Ford told him that he (Ford) would call an Assistant United States Attorney while Simms was enroute to the rendezvous point, and that further instructions would be relayed by radio to that point. Ford called Assistant United States Attorney Barcella and apprised him of the situation. Barcella responded that, based on his extensive experience in getting nighttime warrants, it would take a minimum of 1 1/2 to 2 hours to get a warrant, during which time the powder seen by Simms would in all likelihood be removed. Thus Barcella advised Ford that entry should be made immediately without a warrant. He added the suggestion that, if there was likely to be a delay from the first observation to entry of one hour or more, it might be a good idea to look in the basement window again before going in.

Ford sent this information by radio to the rendezvous point and apparently also ordered another cruiser to join the group for greater safety. Thus it was that five officers in all returned to 28th Street. It was Simms' unshaken testimony that not more than 30 to 40 minutes at most had elapsed from the time he looked in the window until he was back at the house with instructions to enter. The cars were left some distance away, and each of the doorways to the house was covered. Simms noted that the right basement window was still lighted, and that a light also appeared in one of the windows in the upper portion of the house. Betts was at the front door, and Simms and the others went to the kitchen door. Simms knocked first on the screen door and shouted "Police! Police!" When there was no response he gave two or three loud knocks on the door itself. When there was still no response to his repeated calls, he prepared to break the door in when Officer Ponzelli told him not to because there was someone inside looking out through the glass. When this person withdrew and the door was still not opened, it was broken in with a sledgehammer which had been picked up by Simms on his quick visit to Headquarters.

Upon entry one officer went through the first floor to let Officer Betts through the front door. Simms and two other officers immediately rushed down the stairs to the A fourth man was found hiding in a nearby basement closet. Officer Betts, in the basement by this time, found a fifth in the bedroom closet, and a sixth was found hiding in a clothes hamper by the basement stairwell. With the six prisoners secured, a search of the basement was made to try to find narcotics. While the narcotics paraphernalia visible in the bedroom were being collected, bundles of narcotics already labeled and packaged for distribution were found between the mattresses on the bed. In an old rug near the clothes hamper which appeared to have been hastily folded, there was a canvas bag containing a much larger number of bundles of narcotics. ³

basement. At the bottom of the steps they found three men whom Simms, his gun out, ordered to freeze while they were being handcuffed. Simms then stepped through an open door into the lighted bedroom off to his left (the room which he had first looked into through the window). There he found the cutting mirror, but with only powder traces on it, not the powder itself. On the mirror still were the blue and red package tapes, and also on the table were the measuring spoons and pans, and the wrapping paraphernalia. On the floor by the table were distribution envelopes and strainers.

At the conclusion of Officer Simms's testimony and cross-examination, defense counsel unanimously signified that they did not wish to examine Lieutenant Ford and Mr. Barcella or any of the other police officers participating in the entry. Neither did they wish oral argument on their own motions. The prosecutor, however, expressed the thought that perhaps Mr. Barcella ought to be heard and that, in any event, he thought oral argument desirable. In deference to this last, the court set an adjourned date for oral argument, and asked the prosecutor to submit a statement for the record as to the policy in being at the time of the entry with respect to the availability of the federal magistrates on a 24-hour basis.

When the suppression hearing reconvened some two weeks later on November 1, the prosecutor asked, and was granted, leave to present Mr. Barcella as a witness. Mr. Barcella testified at some length about the procedures for getting nighttime warrants in effect on the date in question, and his experience in advising the police with respect to the need for warrants. Although the police could approach the magistrates directly, the better practice was for them first to have authority to do so from an Assistant United States...