U.S. v. Johnson

• Decision Date: 30 September 1986
• Docket Number: No. 85-5131,85-5131
• Citation: 256 U.S. App. D.C. 65,802 F.2d 1459
• Parties: , 21 Fed. R. Evid. Serv. 1166 UNITED STATES of America v. James F. JOHNSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1459

802 F.2d 1459

256 U.S.App.D.C. 65, 21 Fed. R. Evid. Serv. 1166

UNITED STATES of America v. James F. JOHNSON, Appellant.

No. 85-5131.

United States Court of Appeals,

District of Columbia Circuit.

Argued Jan. 16, 1986.

Decided Sept. 30, 1986.

Appeal from the United States District Court for the District of Columbia (Criminal No. 84-00320).

Matthew C. Leefer, Boonsboro, Md., appointed by the Court, for appellant.

Paul L. Colby, Asst. U.S. Atty., a member of the Bar of the District of Columbia, pro hac vice by special leave of Court, with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and William J. O'Malley, Jr., Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Royce C. Lamberth, R. Craig Lawrence and Patricia D. Carter, Asst. U.S. Attys., Washington, D.C., also entered appearances, for appellee.

Before MIKVA and BORK, Circuit Judges, and HAROLD H. GREENE, ^* District Judge.

Opinion for the Court filed by District Judge GREENE.

HAROLD H. GREENE, District Judge:

Appellant James F. Johnson was convicted by a jury of possessing cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a). ¹ He challenges this conviction on two grounds. First, he argues that his motion to suppress the narcotics, narcotics paraphernalia, and a firearm seized from his residence was improperly denied by the trial court. Second, he challenges the admission of the written post-arrest statement of a prosecution witness.

I

Prior to his arrest, appellant operated a variety store at 807B Florida Avenue, N.W., in Washington, D.C. The store was located at street level, and appellant occupied an apartment directly above the store. The apartment was reached by a separate doorway and staircase leading to the second floor, and it used a separate address, 807A Florida Avenue, N.W. The apartment could not be reached from inside the store.

In the evening hours of August 28, 1984, officers of the Metropolitan Police Department executed a search warrant at 807B Florida Avenue. ² As a search of the variety store proceeded, an officer stationed in the alley at the rear of the building observed appellant dropping a brown paper bag from the second floor apartment to a lower portion of the roof. Despite the officer's instruction to appellant to "halt," Johnson withdrew from the window and closed it. The officer, using his hand-held radio, informed the search team inside the store of his observations. Four members of the team thereupon forced open the door to 807A Florida Avenue, climbed the stairway, forced open a second door, and entered the apartment. They searched the apartment and the area below the window, seizing several bags from the roof and from cubbyholes located between the outside wall of the building and two air conditioning units. The bags were found to contain narcotics, narcotics paraphernalia, and a firearm, and all of the seized items were introduced over objection at Johnson's trial.

Warrantless entry of premises is justified only when exigent circumstances make an immediate search imperative. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). The burden is on the prosecution to demonstrate that exigent circumstances were present. United States v. Free, 437 F.2d 631, 633 (D.C.Cir.1970).

The test for exigent circumstances is whether the police had "an urgent need" or " 'an immediate major crisis in the performance of duty afford[ing] neither time nor opportunity to apply to a magistrate.' " Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (quoting District of Columbia v. Little, 178 F.2d 13, 17 (D.C.Cir.1949)). ³

Clearly, exigent circumstances were present in this case. The need to preserve evidence that may be lost or destroyed if a search is delayed is and has long been recognized as an exigent circumstance. ⁴ In the instant case, the officers were engaged in a search for narcotics. It is commonly known that narcotics can be easily and quickly destroyed while a search is progressing, and that "efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic." United States v. Rubin, 474 F.2d 262, 268-69 (3d Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). Accord, United States v. Manning, 448 F.2d 992, 998-99 (2d Cir.) (en banc ), cert. denied, 404 U.S. 995, 92 S.Ct. 541, 30 L.Ed.2d 548 (1971). This general experience was buttressed in the instant case by appellant's highly unusual and suspicious action of dropping a paper bag from his window to the roof below. To any even minimally experienced police officer this provided evidence that appellant was aware of the police presence and was seeking to dispose of contraband. It is only common sense to conclude that a suspect in this situation could and would dispose of remaining narcotics ⁵ in the bathroom of the apartment or through some other means if given the time to do so.

In United States v. Davis, 461 F.2d 1026 (3d Cir.1972), the Third Circuit was presented with similar facts. In that case, a bag of heroin was thrown from an apartment window as federal agents approached the building. When the agents approached the apartment itself, running and scuffling noises were heard inside. "The agents were entitled," the Third Circuit ruled, "to rely on their knowledge of the operations of narcotics traffickers that such noise might well indicate an effort to dispose of the narcotics...." Id. at 1033. The actions of Johnson, which included dropping a paper bag from the window, and retreating inside and closing the window despite a policeman's order to remain stationary, likewise indicated a probability that contraband would be destroyed.

Viewing the case with reference to the totality of the factual circumstances, see Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); United States v. Blake, supra, 484 F.2d at 56, we have no difficulty in concluding that the officers who conducted the search could "reasonably conclude," United States v. Rubin, supra, 474 F.2d at 268, that material evidence was threatened with imminent destruction by the occupant or occupants of 807A Florida Avenue, and that the District Court was therefore correct in denying the motion to suppress.

II

Appellant's second point is more problematic, and a recitation of the events preceding the admission of the signed, post-arrest statement of one David Halmon as part of the government's rebuttal evidence is necessary.

It was the prosecution's theory that appellant used the variety store at 807B Florida Avenue as a front--or at least as a meeting place--for the distribution of cocaine to various individuals who would then sell these narcotics "on the street." In support of this theory, the government introduced in its case-in-chief various bags seized from 807A Florida Avenue, which contained a total of sixty-one individual plastic packets of cocaine packaged as "wholes" or "halves" for street distribution. Latent fingerprints were recovered from several of the plastic bags, and a government expert testified that in eight instances the fingerprints could be identified as those of appellant. In addition, police officers testified about their search of 807A and 807B Florida Avenue and appellant's actions at that time.

The defense case consisted largely of testimony by bystanders who had been in the vicinity of 807A and 807B Florida Avenue during the search. Their testimony can be characterized as an attempt to minimize appellant's involvement and to discredit the testimony of the officers who claimed to have observed appellant. These witnesses, who could recognize appellant by sight, testified that they observed individuals who appeared to be fleeing the scene, that appellant was not among them, and that they had not observed appellant at the window of 807A Florida Avenue.

More significantly, the defense also called Tawanda Jackson, a twenty-year old employee of the variety store, who gave evidence regarding the store's legitimate business activities. In particular, she testified that the store sold "little ziploc plastic bags," and that appellant frequently handled the bags during inventory--testimony which offered an alternative explanation for the fingerprints, since the jury could infer that appellant had innocently given or sold the bags to third persons who then used them for cocaine distribution.

When it came time for the government's rebuttal, it called sixteen-year-old David Halmon as its witness. In a hearing held outside the presence of the jury, it was learned that Halmon had been arrested on August 15, 1984 (two weeks prior to appellant's arrest) in Johnson's variety store on a charge of possessing three packets of cocaine, and that at that time he had given the police a signed statement implicating appellant. Specifically, the statement included information to the effect that Halmon had been selling cocaine for "Jake" for about three weeks at the time of his arrest. ⁶ However, during the court hearing itself, Halmon refused to implicate appellant, and he stated that the cocaine he possessed on August 15 had come from his own "stash" and not from appellant. He acknowledged the signed statement as his own, but testified that he had falsely implicated appellant when he gave the statement.

Over defense objection, the trial court permitted Halmon to testify before the jury and--when he again refused to implicate appellant--it allowed the government to introduce and publish to the jury Halmon's post-arrest statement. Appellant challenges the decision to admit the statement on three grounds. First, he argues that the contents of the statement constituted inadmissible evidence of other crimes. Second, he claims that the statement itself constituted hearsay not within any hearsay exception. ⁷ Third, he contends that...