Brooks v. United States

• Decision Date: 01 December 1976
• Docket Number: No. 8284.,8284.
• Citation: 367 A.2d 1297
• Parties: Raymond BROOKS, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1297

367 A.2d 1297

Raymond BROOKS, Jr., Appellant, v. UNITED STATES, Appellee.

No. 8284.

District of Columbia Court of Appeals.

Argued October 15, 1975.

Decided December 1, 1976.

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[at] Linda Huber, Washington, D. C., appointed by the court, for appellant.

Timothy J. Reardon, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and James F. McMullin, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before GALLAGHER, NEBEKER, and HARRIS, Associate Judges.

HARRIS, Associate Judge.

This appeal involves a warrantless forced entry into appellant's apartment which resulted in his arrest and the seizure of certain physical evidence. Appellant was charged with single counts of rape, sodomy, simple assault, and threats to do bodily harm. D.C.Code 1973, §§ 22-2801, -3502, -504, and -507. In a jury trial he was acquitted of the rape and sodomy charges and found guilty on the assault and threats counts. He appeals the convictions on the ground that they rest upon evidence seized in violation of his Fourth Amendment rights, and contends the trial court erred in denying his pretrial motion to suppress. We conclude that the warrantless entry for the purpose of arrest was proper. However, on the record before us, we are unable to determine whether the post-arrest seizure of evidence fell within the proper limits of the "plain view" doctrine relied upon by the government. We therefore remand the case for further consideration of this issue. See D.C.Code 1973, § 17-306.

I

The events giving rise to this appeal took place over a three-hour period on the night of August 8 and the early morning hours of August 9, 1973. At approximately 10:30 p. m., the complainant was found in the seventh floor hall of an apartment building by a resident who had heard her cries for assistance. She was naked, distraught, and apparently had been beaten about the face. She said she had been forced to go to an apartment somewhere on the tenth floor, where she had been raped. Special Police Officer Walker was summoned; he took the victim back to that area in an attempt to locate the apartment. After conferring with night guard Epko, who had seen the complainant enter the building with appellant at about 9:30 that evening, he determined that the assault must have occurred in Apt. 1006 (appellant's apartment). The police were called.

Ultimately six police officers arrived at the building, the first at approximately 11:30 p. m. Several knocks on the door to Apt. 1006 brought no response. The door then was opened with a key provided by the resident manager, but entry was barred by a chain. The officers made additional demands of "Police ! Open up !" Hearing no response, the officers, with the manager's assent, forced the door and entered the apartment at approximately 12:45 a. m.

Appellant, clad in undershorts, was found behind the bedroom door. He was arrested, handcuffed, and taken to the living room, where he remained for approximately 30 minutes before being removed from the apartment. Thereafter, Detective Franklin and Officer Laughery (a police technician) seized several items of bedding, a sample of mattress material, two pairs of slacks from a bedroom closet, a jacket from the hall closet, and a sweater from a living room table. It is the admission of this evidence at trial that appellant challenges. No warrant for the arrest or for the search and seizure had been obtained.

Appellant's pretrial motion to suppress was denied after an extensive evidentiary hearing. The trial court, relying upon Dorman v. United States, 140 U.S.App.D. C. 313, 435 F.2d 385 (1970) (en banc), and its factual determination that the evidence had been in imminent danger of destruction, concluded that there were sufficient exigent circumstances to justify both the warrantless entry and the seizure of the evidence. See Warden v. Hayden, 387 U. S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). See also United States v. Santana, 427 U.S. 38, 41-42, 96 S.Ct. 2406, 2409, 49 L. Ed.2d 300 (1976).

At trial the complainant testified that she had been forced to go to the apartment by appellant, whom she believed to have been armed, and that she then was raped and sodomized. It was her testimony that appellant hit and choked her when she refused to commit fellatio. The defense theory was that a bargain for prostitution had been made. Appellant acknowledged that he and the complainant were in bed together, nude, but he contended that he could not achieve an erection and hence no sexual acts were committed. Appellant testified that when he attempted to pay the complainant only half of the allegedly agreed-upon price, she grabbed all of his money, whereupon he struck her.

II

Appellant's first argument is that the warrantless forced entry violated his Fourth Amendment rights, and thus required the suppression of the evidence seized subsequent to such entry. Appellant begins by citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967):

[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions. [Footnotes omitted.]

One such exception has been recognized under the rubric of "exigent circumstances,"¹ and turns upon a showing of "a need that could not brook the delay incident to obtaining a warrant." Dorman v. United States, supra, 140 U.S.App.D.C. at 320, 435 F.2d at 392. See Dunston v. United States, D.C.App., 315 A.2d 563, 565 (1974); McGeehan v. Wainwright, 526 F. 2d 397 (5th Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976). It was principally upon this ground that the trial judge upheld the warrantless entry into appellant's apartment. Appellant contends that there were insufficient exigent circumstances to justify the officers' failure to obtain a warrant. We disagree.

In determining whether the entry may be sustained on the basis of exigent circumstances, the pertinent considerations are those set forth by the Dorman court² and enumerated in United States v. Lindsay, 165 U.S.App.D.C. 105, 110, 506 F.2d 166, 171 (1974):

(1) That a grave offense is involved, particularly a crime of violence;

(2) the suspect is reasonably believed to be armed;

(3) a clear showing of probable cause;

(4) a strong reason to believe that the suspect is in the dwelling;

(5) the likelihood of escape if not swiftly apprehended;

(6) a peaceful entry as opposed to "breaking"; and

(7) the time of entry (night or day).

The propriety of the officers' conduct was exhaustively examined in a pretrial evidentiary hearing on appellant's motion to suppress. The trial court made certain factual determinations in reaching its decision to deny the motion, and those findings are not to be disturbed unless clearly erroneous. D.C.Code 1973, § 17-305. See Lee Washington, Inc. v. Washington Motor Truck Transportation Employees Health and Welfare Trust, D.C. App., 310 A.2d 604 (1973); United States v. Lindsay, supra, 165 U.S.App.D.C. at 109, 506 F.2d at 170.

Appellant does not dispute the court's conclusion that the police were dealing with a grave and violent crime. The victim was found disrobed, distraught, and bleeding, while crying that she had just been raped. The nature of the asserted offense was amply substantiated by her distress and visible injuries. However, appellant's first challenge under the Dorman doctrine is that the police had no grounds to "reasonably believe" that he was armed. (No weapon was found in his apartment.) The government argues that unapprehended rapists pose as great a threat to the community as unapprehended armed robbers. While community security is the basic concern underlying this criterion, we need not accept the lower threshold implied by the government's assertion. The exigent circumstances doctrine is to be applied to the facts as perceived by the police at the time of entry, not as subsequently uncovered. See United States v. Lindsay, supra, at 110, 506 F.2d at 171. The complainant testified that she believed that appellant had a weapon in his pocket, possibly a gun or a knife, which he had held against her side in forcing her from the street to his apartment. That account was relayed to the Metropolitan Police by Special Officer Walker. Where, as here, the victim, nude, bleeding, and bearing the obvious marks of an assault, expresses a credible belief that her assailant was armed, assuredly that criterion has been satisfied. See generally Chappell v. United States, 119 U.S.App.D.C. 356, 342 F.2d 935 (1965). Cf. Warden v. Hayden, supra.

There is no real dispute as to probable cause. At the pretrial hearing, defense counsel conceded that the police had probable cause to believe that a rape had occurred in Apt. 1006 and that appellant had been the offender. The belief by Walker and Epko that appellant had assaulted the victim in his apartment was based not only on their personal knowledge of appellant's description, but more significantly on the fact that he had entered the building with the victim a little over an hour earlier. The trial court concluded that this information, relayed to the officers, provided sufficient probable cause for appellant's arrest. We agree. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L. Ed.2d 142 (1964).

At the hearing appellant vigorously urged that the officers did not have "strong reason" to believe that he was in the dwelling to be entered. In rejecting this argument, the court found the circumstances to be similar to those underlying the "hot pursuit" rationale enunciated in Warden v. Hayden, supra, and concluded:

The time frame within which the alleged rape occurred and the time in which she complained about it to the police officers was of such a small period of time that the...