Masiello v. United States
| Decision Date | 14 February 1963 |
| Docket Number | No. 17359.,17359. |
| Parties | Franklin R. MASIELLO, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Ira M. Lowe, Washington, D. C. (appointed by the District Court), for appellant.
Mr. William C. Weitzel, Jr., Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.
Before BAZELON, Chief Judge, and BURGER and WRIGHT, Circuit Judges.
Petition for Rehearing En Banc and Petition for Rehearing before the Division Denied April 30, 1963.
On an earlier appeal from conviction we remanded for the limited purpose of having the District Court re-examine a motion to suppress evidence on the narrow issue whether the search warrant was executed in compliance with 18 U.S.C. § 3109 and to make findings for possible review if the motion was denied. We expressly provided that any appeal from denial of the reconsidered motion to suppress "would be restricted to questions related to the determination which we now require."1
Upon remand the District Court held new hearings on the motion to suppress. Appellant tendered no new evidence but relied on the evidence previously adduced. The prosecution produced the police officers who participated in the execution of the warrant; they testified at length on the details of knocking, the announcement of authority and purpose, the forced entry into the apartment, the finding of numbers slips on "flash paper," which appellant had ignited on a bed, and other gambling papers on the floor. At the conclusion the District Court made findings (a) that one officer knocked at the door without any announcement; (b) that after a lapse of at least 10 seconds and at most 30 seconds according to the different witnesses, one officer again knocked, this time announcing they were police with a warrant to search for gambling violations; (c) that the officers waited an additional 10 to 20 seconds, then broke in.2 From this the District Court concluded the action was not in violation of 18 U.S.C. § 3109 and denied the motion to suppress. The record made on remand shows that the officers heard no words spoken as claimed by appellant, i. e., "Just a minute," but the officer nearest the door heard a rustling or other commotion inside the room. The original record shows the officers were experienced in gambling cases, familiar with the use by gamblers of "flash paper" for numbers operations and its physical properties of instantaneous burning without leaving ash. On this record we hold that the findings of the District Court are supported by substantial evidence and must be affirmed.
The factual issues before the District Court on remand were in large part to be determined on credibility. The District Judge who saw and heard these witnesses has accepted the version of the events as described by the officers; his findings reject appellant's version of the events.3
Section 3109 provides that the officer may break in to execute a search warrant if, after notice of his authority and purpose, "he is refused admittance." Nowhere is there any definition of how long officers must wait after giving the statutory notice of authority and purpose.4 The purpose of the statute, among other things, is to allow the occupant to open the door to admit officers who are legally authorized to enter so that they may execute their duties with the least possible inconvenience to the occupant. But the phrase "refused admittance" is not restricted to an affirmative refusal. Indeed it would be an unusual case coming before the courts where an occupant affirmatively "refused admittance" or otherwise made his refusal known verbally after being given notice pursuant to § 3109. Where, as here, after giving the required notice the officers hear sounds which indicate to them that the evidence sought by the warrant may be in process of destruction, execution of the warrant need not be deferred long enough to allow completion of the...
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...a denial of admittance depends largely on factual determinations made by the trial court. See Masiello v. United States, 115 U.S.App.D.C. 57, 58, 317 F.2d 121, 122 (D.C.Cir.1963) (Burger, J.). Given the testimony placed before him, we do not believe that Judge Oberdorfer erred in concluding......
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U.S. v. Bonner
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