U.S. v. James

• Decision Date: 18 June 1985
• Docket Number: 84-5299,Nos. 84-5287,s. 84-5287
• Citation: 764 F.2d 885,246 U.S.App.D.C. 252
• Parties: UNITED STATES of America v. Jerry J. JAMES, Appellant. UNITED STATES of America v. Thomas K. JAMES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 885

764 F.2d 885

246 U.S.App.D.C. 252

UNITED STATES of America v. Jerry J. JAMES, Appellant.

UNITED STATES of America v. Thomas K. JAMES, Appellant.

Nos. 84-5287, 84-5299.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 20, 1984.

Decided June 18, 1985.

William J. Garber, Washington, D.C. (appointed by this Court), for appellants in Nos. 84-5287 and 84-5299. David Carey Woll, Rockville, Md., was on the brief, for appellant in No. 84-5287.

John M. Facciola, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Thomas J. Tourish, Jr. and William J. O'Malley, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee in Nos. 84-5287 and 84-5299.

Before WALD, EDWARDS and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

On March 26, 1984, a jury found appellant Thomas K. James not guilty of possession with intent to distribute cocaine, marijuana, and phencyclidine ("PCP"), 21 U.S.C. Secs. 841(a), 841(b)(5) (1982), but convicted him of the lesser-included offenses of possession of each of those drugs. 21 U.S.C. Sec. 844(a) (1982). He was sentenced to consecutive sentences of one year on each of the counts of possession. His brother, appellant Jerry James, pleaded guilty to possession of PCP and, in exchange for that plea, the other count pending against him, possession of marijuana, was dismissed. He was sentenced to one year, but the sentence was suspended and he was put on two years' probation.

Both appellants challenge the denial of their pre-trial motions to suppress. ¹ They contend that the police did not adequately state their "purpose" in executing the search warrant as required by 18 U.S.C. Sec. 3109 (1982). Thomas James also appeals the sufficiency of the evidence and the trial judge's use of a Thomas instruction which, he claims, coerced a jury verdict against him.

I.

The police learned of a drug operation at the James residence, 2726 13th Street, N.W., through an informant who said he had purchased cocaine there. This informant had provided information to the police on at least thirty prior occasions, proving accurate in each instance. An undercover officer accompanied the informant to the James home. Pursuant to department practice, the officer searched the informant to make sure that he was not already in possession of contraband, and, finding that he was not, gave him marked money to make a drug purchase. The informant returned from the James residence with a plastic bag containing cocaine. Based upon this evidence and the informant's affidavit that cocaine had been sold there on a regular basis in the past, the police obtained a search warrant.

On September 9, 1983, at one o'clock in the afternoon, the police went to the James residence to execute the warrant. Sergeant Larry L. Brillhart, who led the team, testified that two uniformed officers approached the door to attempt to gain entrance by means of a ruse, while the rest of the officers waited fifty or so feet away out of sight. Transcript of Motion to Suppress ("M. Tr.") at 29-30, 34-37. No ruse was attempted, however, because the uniformed officers knocked several times but received no answer. Brillhart then approached the door, knocked loudly, and announced "police, narcotics." There was still no response. Brillhart repeated the loud knocking and announcement of "police" two or three additional times within approximately thirty seconds without obtaining any response. Id. at 37, 44-45. At this point, the officers heard someone inside the house running down the back stairs. Brillhart ordered officer Stumbo to break down the door. Id. at 29, 38.

After gaining entrance, the officers spread out to search different parts of the house. Officer Stumbo ran down a hallway to the rear of the house and down stairs into a dark basement. After a few moments searching in the dark, one of the two officers who had followed Stumbo to the basement found and switched on an overhead light. Trial Transcript ("Tr.") at 67-69. Stumbo saw a bookcase with a curtain hanging behind it and an arm reaching from behind the bookcase. Id. at 69. Stumbo drew his revolver and told the individual, later identified as Thomas James, to put his hands up. James, however, grabbed the revolver, pulled down on it and caused it to discharge. Id. The officers subdued him. James was dressed in his underwear. When asked to get dressed, he put on clothes taken from a rack of clothes on the other side of the room. After taking Thomas James to the first floor where other officers were assembling all the persons found in the house, the police began a search of the basement.

The main part of the basement consisted of two areas. One, used as a laundry, contained a washer, a dryer, and a sink. The other area held the bookcase and curtain, and behind the curtain, a bed that had been slept in recently. Beside the bed was a nightstand on which were a razor, a toothbrush, toothpaste, and an alarm clock. Tr. at 94, 117. Opposite the bed was the metal bar from which Thomas James had selected his clothing. Several items of men's clothing of similar size hung there. Id. at 138-39. A search revealed a plastic bag containing 10,780 milligrams of marijuana laced with PCP in one of the jackets, and in another seven tin foil packets containing a total of 2,420 milligrams of marijuana laced with PCP. Id. at 169-70, 288.

When the officers first entered the basement they heard water running. In the sink was found a jar with water from the spigot running into it. On the walls of the jar and around the base of the sink there remained flecks of a material that resembled marijuana. Tr. at 119, 125, 166. When tested the flecks proved to be marijuana laced with PCP. Id. at 53.

In several holes in the basement ceiling, running generally from the area of the sink to that of the bed, were found two bags of cocaine, several bags of marijuana, marijuana seeds, and marijuana laced with PCP. Tr. at 51-53, 171-76. Also in the ceiling holes were procaine and mannitol, ² starch, syringes, a cut card used to mix cocaine and a spoon with a white powder residue. Id. at 127-28, 174-75, 178-79.

Partially partitioned off from the rest of the basement, but without a door, was a small room in which the officers found a variety of drug processing and user materials including mannitol, measuring spoons, pipes used to "free base" cocaine, ³ glassine bags with a white powder residue, the tops of acetylene torches, pipes, measuring spoons, vials, a triple beam Ohaus scale used to measure weight to within a tenth of a gram, sheets of plastic, and a heat sealer to seal plastic bags. Tr. at 129-32, 178-79.

II.

Appellants contend that because Sergeant Brillhart announced only "police" when knocking at the door and did not state in addition that the officers were there to execute a search warrant, the forced entry was gained in violation of the controlling statute and therefore all evidence gathered as a result of the search should be suppressed.

18 U.S.C. Sec. 3109 (1982) provides that:

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 or when necessary to liberate himself or a person aiding him in the execution of the warrant.

(Emphasis added.) In the ordinary case an officer is required to state both his authority and his purpose. Miller v. United States, 357 U.S. 301, 308-09, 78 S.Ct. 1190, 1195, 2 L.Ed.2d 1332 (1958). In this case, however, the police, after knocking and announcing their authority repeatedly, but without eliciting a response, heard someone running down the back stairs. A reasonable interpretation of such sounds is that the inhabitants are well aware of the purpose of the police visit and are moving to destroy evidence. This is especially true where, as here, the police knew they had reliable information that cocaine was being sold at that location. Faced with the probable imminent destruction of evidence, the police acted properly by entering the premises at once. To require the police in these circumstances to announce that they are there to execute a search warrant would be to require a futile act. See, e.g., United States v. White, 514 F.2d 205, 207 (D.C.Cir.1975); United States v. Wylie, 462 F.2d 1178, 1186-87 (D.C.Cir.1972). Compliance with section 3109 is unnecessary in such circumstances. See, e.g., United States v. Smith, 520 F.2d 74, 80-81 (D.C.Cir.1975); Masiello v. United States, 317 F.2d 121, 122-23 (D.C.Cir.1963); see also Sabbath v. United States, 391 U.S. 585, 591 & n. 8, 88 S.Ct. 1755, 1759 & n. 8, 20 L.Ed.2d 828 (1968) (recognizing that exceptions to section 3109 may apply in exigent circumstances); Ker v. California, 374 U.S. 23, 39-41, 83 S.Ct. 1623, 1632-1634, 10 L.Ed.2d 726 (1963) (recognizing an exception to a California announcement and entry statute). ⁴

III.

Thomas James argues that the evidence was insufficient to establish narcotics possession beyond a reasonable doubt. In reviewing the sufficiency of the evidence, we cannot overturn the verdict unless a reasonable jury must necessarily have entertained a reasonable doubt. We must "view[ ] the evidence in the light most favorable to the Government, according the Government the benefit of all legitimate inferences, and recognizing that it is the jury's province to determine credibility and to weigh the evidence." United States v. Singleton, 702 F.2d 1159, 1163 (D.C.Cir.1983), citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979) (same standard used in bench trial).

Appellant contends that because the government showed him only to be in "proximity" to the contraband he could not have been...