Coleman v. US

• Decision Date: 13 May 1999
• Docket Number: No. 97-CM-634.,97-CM-634.
• Citation: 728 A.2d 1230
• Parties: Ronald L. COLEMAN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

728 A.2d 1230

Ronald L. COLEMAN, Appellant, v. UNITED STATES, Appellee.

No. 97-CM-634.

District of Columbia Court of Appeals.

Argued December 17, 1998.

Decided May 13, 1999.

Patrick J. Norman, appointed by the court, for appellant.

Chrisellen R. Kolb, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, Mary-Patrice Brown, and John D. Crabb, Jr., Assistant United States Attorneys, were on the brief, for appellee.

Before TERRY and FARRELL, Associate Judges, and KING, Senior Judge.

TERRY, Associate Judge:

Appellant was charged with possession of marijuana¹ and possession of drug paraphernalia.² Before trial he moved to suppress certain evidence that was seized during a search of his home. Appellant claimed that despite a concededly valid search warrant, the officers violated the Fourth Amendment and applicable knock-and-announce statutes when they entered his house by means of a ruse without first announcing their true purpose and authority. The trial court, after an evidentiary hearing, denied the motion. Following a non-jury trial, appellant was convicted of possession of marijuana and acquitted of possession of drug paraphernalia. On appeal he seeks reversal on the ground that the trial court erred in denying his motion to suppress. We hold, first of all, that an entry by ruse does not implicate the knock-and-announce statutes. Because we agree with the trial court that the entry in this case was otherwise reasonable, we affirm appellant's conviction.

I

Sometime between September 7 and September 11, 1996, Officer Edward Delgado of the Metropolitan Police obtained a warrant to search appellant's residence for a .25 caliber pistol.³ Before executing the warrant, Officer Delgado learned that appellant's elderly, invalid mother also lived in the house. Concerned that appellant's mother might "have a heart attack or pass out or faint or get knocked out of the way" if police officers should have to enter the house forcibly, Officer Delgado proposed using a ruse to gain entry. He testified that he and other officers "decided to use a radio run approach rather than come barging into the residence like we usually do." The officers employed the ruse "for [the mother's] safety as well as ours."

In the late afternoon on September 11, Officer Chad Hambrick and another officer, both in uniform, approached the front door of appellant's house. When Officer Hambrick knocked on the front door, he could see appellant's mother sitting on the couch inside.⁴ Through the screen door he told her that he and his fellow officer "had received a radio run to her house and that [they] wanted to make sure everything was okay." He described the call they had supposedly received as either "a burglary or burglar alarm." Appellant's mother told the officers that they could come in to "make sure everything was all right."

Once inside the house, the officers radioed to other members of the search warrant team who were waiting nearby in police cars. The other officers, including Officer Delgado, arrived within thirty seconds and secured the house. Delgado heard "somebody ... talking already about a search warrant, that they had a search warrant for the premises" when he walked through the front door.⁵

Despite a thorough search, the officers did not find any guns. However, they did recover marijuana and assorted drug paraphernalia⁶ from an upstairs bedroom, where they also found mail bearing appellant's name. When they completed the search, the officers gave appellant's mother a copy of the search warrant with an inventory of all the items they had seized.

The trial judge denied appellant's motion to suppress. She found the use of the ruse reasonable because it promoted the purposes of the knock-and-announce statute. First, it decreased the potential for harm to both appellant's mother and the officers. Second, because the officers had seen a picture of appellant and had been given a description of his mother prior to the search, there was no risk that they were entering the wrong dwelling. Third, the ruse prevented any potential destruction of property. On the basis of these findings, the judge held that the entry was reasonable and thus did not violate the Fourth Amendment.

II

Appellant contends that the evidence seized from his home was improperly admitted because the police officers' use of a ruse to gain a peaceful entry violated the local and federal knock-and-announce statutes. According to his interpretation, the officers were required to disclose their true authority and purpose before entering the house to execute the warrant. Appellant also asserts that the entry was not reasonable under the Fourth Amendment, so that the search was unlawful despite a valid warrant.

The District of Columbia knock-and-announce statute, D.C.Code § 23-524(a) (1996), requires an officer to execute a search warrant "in accordance with section 3109 of Title 18, United States Code." The latter statute provides:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance....

18 U.S.C. § 3109 (1994). Appellant cites three of our cases in support of his argument that the officers' unannounced entry was a "breaking": West v. United States, 710 A.2d 866, 868 (D.C.1998); Poole v. United States, 630 A.2d 1109 (D.C.1993),cert. denied, 513 U.S. 855, 115 S.Ct. 160, 130 L.Ed.2d 98 (1994); and Griffin v. United States, 618 A.2d 114 (D.C.1992). Those cases, however, are distinguishable because in all of them the police officers used battering rams or similar means to break down the doors. Appellant's argument necessarily assumes that the term "break" includes a peaceful entry by means of a ruse. He argues, as have litigants in other cases, "that any entry obtained other than by the informed consent of the occupant is a `breaking,' because it is not made with the occupant's `valid permission.'" State v. Myers, 102 Wash.2d 548, 554, 689 P.2d 38, 42 (1984). We reject that argument now, as we have in the past.

Referring to 18 U.S.C. § 3109, the Supreme Court has held that "the use of `force'" is not "an indispensable element of the statute." Sabbath v. United States, 391 U.S. 585, 589, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). Nevertheless, the term "break" usually connotes some application of force.<sup>7</sup> Sabbath explained that "break," as used in section 3109, includes breaking down a door, forcing open a chain lock on a partially open door, opening a locked door by use of a pass key, or opening a closed but unlocked door, indicating that at least some force must be applied, however slight. Id. at 589-590 n. 5, 88 S.Ct. 1755. Consistently with Sabbath, "[f]ederal courts ... generally continue to hold that, where there is no force used to obtain entry, 18 U.S.C. § 3109 is not implicated, and, therefore, there is no requirement for officers to knock and announce before entry." State v. Dixon, 83 Hawai`i 13, 21, 924 P.2d 181, 189 (1996). Most recently, the Supreme Court has reminded us that 18 U.S.C. § 3109 "prohibits nothing. It merely authorizes officers to damage property in certain instances." United States v. Ramirez, 523 U.S. 65, 118 S.Ct. 992, 997, 140 L.Ed.2d 191 (1998).

The Supreme Court has not specifically decided whether an entry obtained by means of a ruse constitutes a "breaking" for purposes of the knock-and-announce statute. See Sabbath, 391 U.S. at 590 n. 7,

88 S.Ct. 1755. But federal and state courts interpreting both 18 U.S.C. § 3109 and similar state statutes have concluded that an entry obtained by ruse does not violate knock-and-announce requirements because it is not a "breaking" within the meaning of the statutory language. See, e.g., United States v. Contreras-Ceballos, 999 F.2d 432, 435 (9th Cir.1993) ("a law enforcement officer's use of a ruse to gain admittance does not implicate section 3109 because it entails no breaking"); United States v. Raines, 536 F.2d 796, 800 (8th Cir.) ("A police entry into a private home by invitation without force, though the invitation be obtained by ruse, is not a breaking and does not invoke the common law requirement of prior announcement of authority and purpose, codified in § 3109"), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976); United States v. DeFeis, 530 F.2d 14, 15 (5th Cir.) ("An entry obtained without force by ruse or deception is not a violation of section 3109"), cert. denied, 429 U.S. 830, 97 S.Ct. 92, 50 L.Ed.2d 95 (1976); United States v. Syler, 430 F.2d 68, 70 (7th Cir.1970) (inducing defendant to unlatch and partially open door by calling out "Gas man!" did not involve force and thus did not implicate section 3109); Dickey v. United States, 332 F.2d 773, 778 (9th Cir.) ("the employment of a ruse to obtain the full opening of the [defendant's] door, unassociated with force, was not a `breaking'"), cert. denied, 379 U.S. 948, 85 S.Ct. 444, 13 L.Ed.2d 545 (1964); Leahy v. United States, 272 F.2d 487, 489 (9th Cir.1959) ("Misrepresentation of identity in order to gain admittance is not a breaking with the meaning of [section 3109]"), cert. dismissed, 364 U.S. 945, 81 S.Ct. 465, 5 L.Ed.2d 459 (1961); State v. Dixon, supra, 83 Hawai`i at 21, 924 P.2d at 189 ("it would be inconsistent with the plain language of the statute to interpret the use of a ruse to effect voluntary opening of the door, through which the officers enter without any use of force, as a breaking, requiring compliance with the knock and announce requirements"); State v. Myers, supra, 102 Wash.2d at 554, 689 P.2d at 42 (argument that "entry obtained other than by informed consent of the occupant is a `breaking' ... is not persuasive").

This court has likewise accepted and endorsed the use of a ruse to gain peaceful entry, without requiring compliance with section 3109. In United States v. Covington, ...