U.S. v. Smith

• Decision Date: 01 August 1975
• Docket Number: No. 75-1016,75-1016
• Citation: 171 U.S.App.D.C. 342,520 F.2d 74
• Parties: UNITED STATES of America v. Louis D. SMITH, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 74

520 F.2d 74

171 U.S.App.D.C. 342

UNITED STATES of America v. Louis D. SMITH, Appellant.

No. 75-1016.

United States Court of Appeals District of Columbia Circuit.

Argued May 22, 1975.

Decided Aug. 1, 1975.

Gary Howard Simpson, Washington, D. C. (appointed by this Court), for appellant.

Bernard J. Panetta, II, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Stuart M. Gerson and John E. Drury, III, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and McGOWAN, Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge FAHY.

Concurring and dissenting opinion filed by Circuit Judge McGOWAN.

FAHY, Senior Circuit Judge:

Appellant was convicted at a non-jury trial on one count of possession with intent to distribute 309,620 milligrams of marijuana (21 U.S.C. § 841(a)), and on another count of possession of 33 tablets of phencyclidine (21 U.S.C. § 844(a)). He was found not guilty on a third count. His sentence was three years imprisonment on the marijuana count and one concurrent year on the other. The evidence relied upon by the United States at trial was seized during the execution of a search warrant at an apartment leased to and occupied by appellant at the time of the search. After a hearing the District Court denied a motion to suppress the evidence.

The appeal raises the question whether the trial court erred in denying appellant's motion for judgment of acquittal grounded on the contention that the 309,620 milligrams of marijuana and the phencyclidine were not shown to have been in appellant's actual or constructive possession. A further question on appeal probes the manner in which the search warrant was executed, contended by appellant to have been violative of 18 U.S.C. § 3109, and that, therefore, the seized evidence should have been suppressed, with the further consequence that the convictions should be reversed.

I

The parties stipulated to the following facts: at approximately 6:30 a. m., July 31, 1974, four members of the Metropolitan Police Department, with a search warrant the validity of which is not questioned, came to the door of the apartment leased to appellant on the sixth floor of an apartment building. One officer knocked on the door and stated: "Police officers, we have a search warrant." Entry was not otherwise requested. After approximately fifteen seconds the officers attempted to open the door with keys which had been given to them by the manager of the building. They heard "hurried movement" from within the apartment, a stirring and sort of shuffling, which one of the officers considered to be a movement away from the door. After a further delay of approximately ten to fifteen seconds, the door to the apartment was broken open with a sledge hammer. Appellant was in the bathroom, clothed only in a towel and standing by an open window, with a fresh cut on his left thumb. One of the officers looked out the bathroom window and saw a brown bag directly below on the sidewalk. It was later found to contain 309,620 milligrams of marijuana, having a "street value" of approximately $200.00. One other man was in the apartment. As the officers entered he "was still in a bed awakening," as the stipulation states the matter.

The police searched the room (its measurements were approximately 16' by 14' according to appellant's testimony at the suppression hearing), and in two wall closets, a night stand and dresser found the following articles which were admitted in evidence: a brown paper bag containing a plastic zip bag with marijuana residue, two plastic vials, containing respectively 33 red tablets of phencyclidine and 7,812.8 milligrams of marijuana, one smoking pipe which contained marijuana residue, forty-two manila coin envelopes, one cigarette roller and paper, and one scale. Appellant was known by the police to have occupied the apartment for at least three weeks.

II

Assuming for the time being the correctness of the District Court's ruling that the search was validly conducted notwithstanding the door was forced, a matter shortly to be considered, the issue of the sufficiency of the evidence turns upon whether the trial court erred in finding beyond a reasonable doubt that appellant had constructive possession of the marijuana in the paper bag on the sidewalk below the apartment's bathroom window and the phencyclidine tablets found in a wall closet in the apartment.

Possession has been defined as being, either actual or constructive in that the accused is in position to exercise dominion and control over the contraband. (Footnote omitted.)

Miller v. United States, 121 U.S.App.D.C. 13, 347 F.2d 797, 799 (1965). See, also, United States v. Holland, 144 U.S.App.D.C. 225, 445 F.2d 701, 703 (1971).

That "possession" which, under the statute, creates a presumption of criminal traffic in certain narcotics can be established by a showing that the accused knowingly had the contraband under his "control or dominion" (a situation sometimes denominated "constructive possession") even though it was not found on his person or within his immediate reach.

United States v. Bonham, 477 F.2d 1137, 1138 (3rd Cir. 1973).

The inference of control and dominion by appellant of the disputed evidence is compelling. There was no rational evidence linking the other man, who was permitted to go his way, with dominion or control. The appellant was lessee and occupant of the premises. The evidence found in the apartment clearly was in his control. He was the only other occupant. His control is confirmed by the inferences to be drawn with respect to the marijuana on the sidewalk. Neither that nor the evidence found in the apartment is isolated from the other. They are linked by his relationship to each. The place each was found supports the source of control of both. Aside from the juxtaposition of appellant with respect to the marijuana on the sidewalk, in a bag like other bags found in the apartment, the juxtaposition of the evidence in the apartment to that on the sidewalk, and the nature of the evidence, support the finding that the control of one was the source of control of the other the appellant.

III

The officers, as noted, broke into the apartment. Accordingly, the validity of the search and the admissibility of the evidence seized raises the question whether they complied with the provisions of 18 U.S.C. § 3109, which read 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.

As stated in Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 1194, 2 L.Ed.2d 1332 (1958):

That section (§ 3109) provides that an officer, executing a search warrant, may break open a door only if "after notice of his authority and purpose," he is denied admittance.

And, as further stated in United States v. Watson, 307 F.Supp. 173, 175 (D.D.C.1969):

The validity of an entry to execute an arrest, either with or without a warrant, is tested by criteria identical to those embodied in Section 3109. Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); Garza-Fuentes v. United States, 400 F.2d 219 (5th Cir. 1968); Jackson v. United States, 354 F.2d 980 (1st Cir. 1965). An officer cannot break into a house to effect an arrest, then, unless he first (1) identifies himself as a police officer, (2) states his purpose, and (3) is refused admittance.

And see, United States v. Barrow, 212 F.Supp. 837, 846 (E.D.Pa.1962).

Appellant contends there was no refusal of admittance because no request for admittance was made. No explicit request was made. So much is conceded. Following the suppression hearing the District Court found, however, that the request was impliedly made and was understood by appellant because of the knock on the door and statement of one of the officers that it was the police and they had a search warrant. The court explained:

The narrow and perhaps somewhat technical question presented is whether the police were justified in breaking down the door without having first made a specific request that the door be opened. Research has failed to disclose a case precisely on point. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), reviews the historical background and some of the authorities. The rule is broadly stated as requiring the police to identify themselves as officers, which was done here, and to make an express announcement of their purpose. Here they announced, without requesting entry, that they had a search warrant. This announcement apparently was understood by defendant since he immediately undertook to conceal the narcotics in his possession. It appears to the Court that the announcement of the officers was not ambiguous, that there was a sufficient indication of desire to enter, and that the motion to suppress should accordingly be denied. (Footnotes omitted.) ¹

The conclusion thus reached by the District Court of a sufficient indication of a desire to enter, so understood by appellant, we think is sound. But the court made no finding of a refusal of admittance a refusal which section 3109 in terms also requires as a condition to a valid entry by force. We need not labor the importance of this condition since it is prescribed by statute and is not constitutionally challenged or in doubt. ²

Considering the court's Memorandum as a whole it seems to us that its references to the occupants' non-attention to opening, indications of movement, and attempts to conceal the narcotics, were related by the court only to "the narrow and perhaps somewhat technical question presented . . . whether the police were justified in breaking down the door without having first made a specific request...