U.S. v. Bonner

• Decision Date: 01 August 1989
• Docket Number: Nos. 88-3042,88-3043,s. 88-3042
• Parties: , 57 USLW 2706 UNITED STATES of America v. Joseph BONNER, Appellant. UNITED STATES of America v. James TURNER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 822

874 F.2d 822

277 U.S.App.D.C. 271, 57 USLW 2706

UNITED STATES of America v. Joseph BONNER, Appellant.

UNITED STATES of America v. James TURNER, Appellant.

Nos. 88-3042, 88-3043.

United States Court of Appeals, District of Columbia Circuit.

Argued March 9, 1989.

Decided May 12, 1989.

Rehearing En Banc Denied Aug. 1, 1989.

Appeals from the United States District Court for the District of Columbia (Criminal Action Nos. 87-00059-01 and -02).

Frederick S. Young, Washington, D.C. (student counsel), with whom Steven Goldblatt and Dori K. Bernstein were on the brief, for Joseph Bonner.

Lawrence M. Baskir (appointed by the Court), for James Turner.

Andrew Levchuk, Attorney, Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Washington, D.C., Asst. U.S. Atty., were on the brief, for U.S.

Before WALD, Chief Judge, and STARR and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

Dissenting opinion filed by Chief Judge WALD.

STARR, Circuit Judge:

This case requires us to determine whether Metropolitan Police Department officers, in executing a search warrant, complied with the federal "knock and announce" statute, 18 U.S.C. Sec. 3109 (1982). That statute provides in pertinent part:

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

Id.

I

The search at issue was supported by a warrant, the validity of which appellants do not contest. In securing the warrant, a District of Columbia police officer related that a reliable informant had reported that "cocaine [was] being sold from within the [apartment]" in question and described the results of a controlled purchase of cocaine (with additional amounts observed) at that location. A warrant was thereupon issued for "cocaine and related paraphernalia, books ... and other papers relating to the distribution and trafficking in narcotics" inside the apartment.

To execute the warrant, six or more MPD officers presented themselves at the front door of the apartment just before 8:00 p.m. Suppression Hearing Transcript ("Tr.") 63-64. Lieutenant Gales led the search. Investigator Neill stood across from Lt. Gales, also near the door. Lt. Gales knocked three times and announced to those he knew to be within, "Police officers, open up, we have a search warrant." Id. at 55. He paused and repeated the procedure. Officer Neill testified that he then heard what sounded like footsteps running from the door. Id. at 42-43, 51. Lt. Gales testified that "[i]t seems as though I could hear some faint thumping or bumping inside the premises, and I ordered that the door be forced." Id. at 56; see also id. at 71, 75.

Using a battering ram, the officers succeeded immediately in opening the door. As the officers entered the apartment, they spotted appellant Bonner moving toward the bathroom and appellant Turner emerging from that room. The toilet was flushing. The officers thereupon arrested appellants and discovered, among other items, scores of vials of crack cocaine and small parcels of powdered cocaine; two sawed-off shotguns and various pieces of ammunition; and more than $6,000 in cash.

Prior to trial, appellants moved to suppress the evidence discovered in the search. They argued that the officers' entrance into the apartment failed to comply with the knock-and-announce statute. ¹ Appellants did not challenge the validity of the underlying warrant, nor did they gainsay that the officers gave notice of their "authority and purpose." Rather, their sole argument was (and is) that the officers had not waited long enough between the first notice and subsequent entrance to be, in effect, "refused admittance."

During an extensive suppression hearing, the District Court conducted a reenactment of the events outside the apartment door. That reenactment indicated that eight to nine seconds passed between Lt. Gales' first knock and the end of the second announcement, a result in accord with other testimony. Tr. 56, 93. After that period and before entrance, a few additional seconds passed, during which the officers heard noise from within; Lt. Gales ordered the door knocked down; and the officers rammed the door open and entered. Based on the evidence of record, the District Court concluded that the knock-and-announce statute did not condemn the officers' action. See infra note 12. Convicted of possessing cocaine, see 21 U.S.C. Sec. 844 (1982 & Supp. IV 1986), and other offenses, appellants now challenge the trial court's conclusion with respect to the officers' entrance. We agree with Judge Sporkin's conclusion that the officers did not run afoul of section 3109 and therefore affirm the convictions.

II

We believe that the officers' entrance conformed to the standards of section 3109. Even were that not so, we are further satisfied that exigent circumstances obtained so as to justify any deviation from complete compliance with the terms of the statute.

A

As we indicated in the factual narrative, the officers in this case knocked on the apartment door, identified themselves, and stated their specific purpose. It is therefore undisputed that the officers (through Lt. Gales) gave "notice of [their] authority and purpose." 18 U.S.C. Sec. 3109. Appellants' entire challenge rests on the narrow argument that the officers were not "refused admittance," id., before they knocked open the door. They maintain that the officers should have tarried longer at the door before employing the battering ram to secure access to the apartment.

It is well established that "the phrase 'refused admittance' is not restricted to an affirmative refusal," Masiello v. United States, 317 F.2d 121, 122 (D.C.Cir.1963) ("Masiello II"), but encompasses circumstances that constitute constructive or reasonably inferred refusal. See, e.g., id.; see also United States v. James, 528 F.2d 999, 1017 (5th Cir.) ("Failure to respond within a reasonable time was tantamount to a refusal. A reasonable time is ordinarily very brief."), cert. denied, 429 U.S. 959, 97 S.Ct. 383, 50 L.Ed.2d 326 (1976). In making such judgments, courts employ a highly contextual analysis, examining all the circumstances of the case, to determine whether the record establishes the existence of a constructive refusal. See, e.g., United States v. Phelps, 490 F.2d 644, 647 (9th Cir.), cert. denied, 419 U.S. 836, 95 S.Ct. 64, 42 L.Ed.2d 63 (1974).

Several facets of this case strongly support the conclusion that the officers had, in effect, been refused admittance. First, the officers were searching for drugs and other incidents of drug trafficking. They knew that persons were inside the apartment and gauged their search accordingly. As cases have repeatedly recognized, this type of evidence is peculiarly susceptible to ready destruction. See, e.g., Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Socey, 846 F.2d 1439, 1445 (D.C.Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 152, 102 L.Ed.2d 123 (1988).

Second, the officers could reasonably have expected that they were entering into a den of drug traffickers. ² Those within might reasonably be thought to be unusually attuned to a law-enforcement knock at the door, and ready to respond promptly in one form or another. As common sense, and bitter experience, would suggest, the law has "uniformly ... recognized that substantial dealers in narcotics possess firearms and that such weapons are as much tools of the trade as more commonly recognized drug paraphernalia." United States v. Payne, 805 F.2d 1062, 1065 (D.C.Cir.1986) (and cases surveyed, see id. at 1065-66.) ³ Once police officers seeking to enter a drug traffickers' enclave have announced their identity and authority, they stand before the door blind and vulnerable. In such a danger-fraught situation, the officers may quite reasonably infer refusal more readily than under other circumstances. See Tr. 34-35, 59-60, 66 (fear of harm, entrance with guns and uniform); cf. United States v. Harris, 435 F.2d 74, 81 (D.C.Cir.1970) ("The officers prudently came prepared to meet violent resistance.... When the officers knocked on the door, they did not know whether they would be greeted in a normal manner or answered by a hail of bullets."), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 152 (1971). A fusillade of gunfire from within need not mark refusal.

Third, the warrant process has tested and certified this information. Courts have applied section 3109 to warrantless searches. See, e.g., Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). However, a warrant ensures that officers have had to support, articulate, and swear to their assumptions. And no danger exists that tales of drugs and narcotics trafficking are anything but officers' conclusions formed prior to the search.

Fourth, the officers in this instance twice gave clear notice of their authority and purpose. ⁴ In view of the officers' knowledge that persons were within the small apartment and the timing of the warrant's execution (early evening hours), this notice renders the ensuing lack of response (during the approximately 10 seconds following the first announcement of purpose) particularly probative of refusal. Under these circumstances, the possibility that those within did not hear or would not respond promptly (if desiring to respond) is slight indeed. See Jackson v. United States, 354 F.2d 980, 982 (1st Cir.1965) ("[T]en seconds of silence in this case could mean that the occupant had not even started [toward the door], and hence was not going to.").

Fifth, following their renewed knocking and announcement, officers heard sounds consistent with both refused admittance and destruction of the object of the search. ⁵ When conducting a search for evidence that is readily destroyed, officers may resolve the ambiguity of a...