U.S. v. Dorsey

• Decision Date: 12 January 1979
• Docket Number: Nos. 77-1750,77-1801,s. 77-1750
• Citation: 192 U.S. App. D.C. 313,591 F.2d 922
• Parties: , 4 Fed. R. Evid. Serv. 219 UNITED STATES of America v. James Robert DORSEY, Appellant. UNITED STATES of America v. Faye Margaret CRAWFORD a/k/a Faye Margaret Powell, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 922

591 F.2d 922

192 U.S.App.D.C. 313, 4 Fed. R. Evid. Serv. 219

UNITED STATES of America v. James Robert DORSEY, Appellant.

UNITED STATES of America v. Faye Margaret CRAWFORD a/k/a Faye Margaret Powell, Appellant.

Nos. 77-1750, 77-1801.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 10, 1978.

Decided Dec. 21, 1978.

As Amended Jan. 12, 1979.

Nancy A. Petranto ^* and Evelyn G. Kitay,* with whom Michael E. Geltner, Washington, D. C. (appointed by this Court), and Larry J. Ritchie, Washington, D. C., were on the brief, for appellants.

Michael W. Farrell, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty. and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

Before BAZELON, McGOWAN and MacKINNON, Circuit Judges.

Opinion for the court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

After the police, in the course of executing a search warrant at a private dwelling, discovered appellants Robert Dorsey and Faye Crawford in a bedroom containing 83 1/2 grams of two-percent-purity heroin, both were arrested and charged with local and federal narcotics offenses. Crawford was also charged with several firearms violations under local and federal statutes. A principal challenge by both appellants is to the sufficiency of the search warrant; and both object to their multiple narcotics convictions for possession and possession with intent to distribute. In addition, each appellant presses other claims relevant solely to his or her appeal. Although we agree with the trial court that no impropriety tainted the search, we remand Crawford's case for further consideration by the District Court of the admissibility of certain credibility-impeaching evidence; and we remand both cases for vacation of overlapping convictions.

I

On March 1, 1977, several officers of the Narcotics Branch of the Metropolitan Police Department executed a search warrant which specified the "ENTIRE PREMISES" of a certain private dwelling, allegedly occupied by one Patricia Wright, on "T" Street, Northwest, in Washington, D.C. During the five months prior to this search, officers of the Narcotics Branch had entered the dwelling a three-story structure with one entrance in executing another search warrant, making arrests, and delivering subpoenas. In addition, they had kept rather constant watch on the premises for some time and recently had received a report from an averredly reliable informant who had entered the first floor of the dwelling and purchased drugs there from Patricia Wright. On the basis of police observations of the dwelling and the informant's report, the police had secured a magistrate's authorization of the search.

Eight to ten officers in four squad cars arrived at the specified dwelling to execute the warrant. They were greeted with shouts of "Police. Here come the police. Rollers!" from the scores of people standing on nearby sidewalks. As one police officer ran to the rear of the building, he saw two people jump out of second or third story windows, one onto an adjoining roof, and the other into the window of the building next door.

Meanwhile, the other officers, after knocking, announcing their identity and purpose, and hearing shouts inside, had forced the front door open and, with guns drawn, moved quickly to the upper floors. Within seconds, the attention of the police became focused on the middle of the three rooms on the second floor. The first officer to reach that floor noticed that the door to the middle room a bedroom was open; and that three persons, including both appellants, were inside. Two other people, including the occupant named in the warrant, Patricia Wright, were seen moving away from the room quickly. One detective stepped into the room, "yelled 'Police,' " and told all of the occupants not to move. He then immediately seized in succession, first, from an open purse identified as belonging to appellant Crawford, a .25 caliber automatic pistol with obliterated serial numbers; second, from a dresser top, a plastic bag containing brownish-white powder later identified as heroin, a quantity of the same powder which had been spilled onto an open book, and some paraphernalia associated with the distribution of heroin; and third, from the floor, a torn paper bag containing eighteen plastic bags filled with the same brownish-white substance, next to which were found three plastic bags of the substance. About this time, one of the officers "hollered out that (he) had found the dope."

At the same time as these events occurred, other officers were calling to and pursuing the people who had been moving away from the doorway of the middle room and those who had been observed jumping out of the upper story windows. Some of these people were apprehended and brought back to the central, second-floor bedroom, until five suspects and at least five officers were in the room. At some point thereafter, and subsequent to the above-listed seizures, according to police testimony which is undisputed, an officer read the suspects their Miranda rights from Police Department Standard Form 47. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although the police department uses the reverse side of that form as a record of waiver of those rights which arrestees are asked to sign and date after answering several questions affirmatively none of the five suspects, while gathered in the central bedroom, were asked the relevant questions or were given the opportunity to sign the form. ¹

Police testimony further indicated that, immediately after the officer read the "rights" side of Standard Form 47, the same officer inquired generally as to the ownership of an army field jacket discovered in the room, a search of which had turned up paraphernalia for heroin use. Appellant Dorsey reportedly answered, "That's my stuff, I'll take the beef for that." In answer to another inquiry as to who the permanent occupant of the room was, Dorsey again reportedly answered affirmatively, verifying an inference that the jury was asked to draw from a mural painted on a wall of the room and signed by Dorsey. ² The police removed the five suspects to the station house, where they were booked. During this procedure, Crawford made incriminating statements, including some overheard by police while Crawford spoke with someone on the telephone.

The government charged both appellants with a local law narcotics possession offense, 33 D.C.Code § 402 (1973), and with possession of a controlled substance with intent to distribute, a federal offense under 21 U.S.C. § 841(a) (1976). In addition, Crawford faced two federal firearms charges, 18 U.S.C. §§ 922(k), 924(c)(2) (1976) (receipt of a firearm in interstate commerce with the serial number removed; and unlawfully carrying a firearm during commission of a felony), and two local firearms charges, 22 D.C.Code §§ 3204, 3212 (1973) (carrying an unlicensed firearm; and obliteration of identifying marks on a firearm).

At a suppression hearing before trial, both appellants asserted that the dwelling on "T" Street, although not registered as such with the local government, served as a multi-residence rooming house, as to which individual warrants for each unit were required. See, e. g., Moore v. United States, 149 U.S.App.D.C. 150, 152, 461 F.2d 1236, 1238 (1972). Because the warrant specified the entire dwelling, and named only one person, Patricia Wright, who assertedly did not occupy the room from which the contraband was seized, appellants argued that the warrant lacked the necessary specificity.

The trial court denied the suppression motion. Its rulings appear to have been that (1) appellants' evidence did not show that the police should have known that the dwelling was a rooming house, and (2) its status as a rooming house was in any case "immaterial" because the police had sufficient information, albeit much of which was not included in the affidavit used to secure the warrant, to give the police probable cause to search any subunit within the overall structure.

At the joint trial of both appellants and two other defendants, the government relied on the evidence derived from the search, as described above. In addition, police officers related to the jury the post-arrest statements of both Dorsey and Crawford. Both appellants took the stand and denied having any connection with the contraband found in Dorsey's room. ³ The government impeached Crawford's testimony by eliciting an admission from her that she recently had been convicted for shoplifting in Maryland.

The jury convicted Dorsey of both narcotics offenses with which he was charged, and convicted Crawford of all of the offenses for which she was indicted except obliterating the identifying marks of a firearm under 22 D.C.Code § 3212 (1973). ⁴ The trial judge then sentenced Dorsey to 1-3 years of imprisonment, with a special three-year parole term, on the federal narcotics distribution conviction, and to 1 year of imprisonment, to run concurrently, on the local possession count. Crawford was sentenced to 2-6 years of imprisonment, with a special three-year parole term, on the federal narcotics distribution conviction, and to 1 year of imprisonment, to run concurrently, on the local possession count. In sentencing her on the firearms offenses, however, the trial judge apparently made a technical mistake. While specifying a sentence of 3 years on "count three," he identified that count as "carrying a pistol without a license and obliteration of i. d. marks (in) violation of 18 U.S.C. (s) 922(k)." Thus, although he cited the federal statute prohibiting receipt in interstate commerce of a firearm with the serial number removed, on which Crawford indeed had been convicted, he actually described in terms two local charges, 22 D.C.Code § 3204 (carrying an unlicensed firearm) and 22 D.C.Code § 3212 (obliteration of identifying...