U.S. v. Thornton

• Decision Date: 12 October 1984
• Docket Number: No. 84-5190,84-5190
• Citation: 241 U.S.App.D.C. 46,746 F.2d 39
• Parties: UNITED STATES of America v. Benjamin T. THORNTON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 39

746 F.2d 39

241 U.S.App.D.C. 46

UNITED STATES of America v. Benjamin T. THORNTON, Appellant.

No. 84-5190.

United States Court of Appeals, District of Columbia Circuit.

Argued June 1, 1984.

Decided Oct. 12, 1984.

Appeal from the United States District Court for the District of Columbia (Criminal No. 83-00180-01).

Stephen H. Glickman, Washington, D.C., with whom Roger E. Zuckerman, Washington, D.C., was on the brief, for appellant.

Joan C. Barton, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Thomas J. Tourish, Jr., and Paul L. Knight, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before ROBINSON, Chief Judge, and MIKVA and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

This is an appeal by Benjamin Thornton from his conviction, following a jury trial, for possession of narcotics with intent to distribute in violation of 21 U.S.C. Sec. 841(a). In his appeal, Mr. Thornton maintains that he was improperly denied the benefit of an instruction to the jury for the lesser included offense of mere possession of narcotics. He also contends that the District Judge was biased and prejudiced against him so as to deprive him of a fair trial; that the searches resulting in the seizure of heroin and narcotics paraphernalia were violative of the Fourth Amendment; and that the District Court erred by reviewing a presentence report with respect to an earlier conviction of Mr. Thornton. For the reasons that follow, we affirm.

I

A

This case arose out of a gambling investigation conducted by officers of the Metropolitan Police Department of the District of Columbia ("MPD") and the Prince George's County, Maryland, Police Department during the months of February and March 1983. Police suspected that appellant, a resident of Maryland, who had previous arrests and one conviction for gambling violations, and his daughter, who had one previous arrest for gambling violations, were operating a lottery or "numbers game" out of three locations in the District of Columbia: 1265 Simms Place, N.E., Apartment 21; 1270 Simms Place, N.E., Apartment 2; and 55 P Street, N.W.

The three locations were placed under surveillance beginning the first week of February 1983. During eleven days of surveillance of the two apartments on Simms Place, appellant was observed entering or leaving one or both of the apartments on six different dates. Appellant's daughter was seen on the 1200 block of Simms Place more frequently. On several occasions, appellant or his daughter was observed moving back and forth between the two Simms Place apartments. Most of these observations by police officers took place between 11:00 a.m. and 5:00 p.m., which is considered the prime period of time for illegal gambling.

A critical event during this period of surveillance occurred on February 7, 1983, when appellant was observed leaving 1270 Simms Place and walking to 1265 Simms Place. Shortly afterward, he left 1265 Simms Place carrying a white plastic garbage bag. Mr. Thornton then walked to the rear of 1265 Simms Place and deposited the garbage bag in a trash can, which was actually an oil drum the lid of which had been cut off. This trash can was one of several oil drums located in an alley behind the building at 1265 Simms Place, adjacent to a garage situated on another lot. After observing appellant's activities in this respect, MPD officers, unbeknownst to Mr. Thornton, removed the bag from the trash can and discovered that it contained gambling paraphernalia, namely numbers work and "run-down" tapes.

On March 3, 1983, the police obtained a court order authorizing the installation of pen register devices on the two apartments at 1265 and 1270 Simms Place. These devices, when attached to the telephone lines of the apartments, register the time and day of any telephone calls received by, and the time, day, and phone number of any calls made from the apartments. The pen registers showed that from March 7 to March 19, fifty-one calls were made from 1265 Simms Place and 1270 Simms Place to 55 P Street, and most of these calls took place within one hour of the prime gambling period.

In addition to the events at Simms Place, the surveillance of 55 P Street, N.W., conducted on two days in March 1983, likewise yielded relevant information. Police observed a fairly large number of people entering and exiting the house. On March 15, twenty-four people entered 55 P Street between 12:20 p.m. and 3:00 p.m.; on March 16, fourteen people entered between 12:45 p.m. and 4:10 p.m. These people were admitted either by someone on the inside of the house who would unlock the iron door, or by a man standing outside with a key. Many of the visitors to the house carried bags inside, but did not have the bags when they left.

The surveillance at the three locations, the items found in the trash can, and the results of the pen registers led the police to conclude that appellant's daughter was accepting wagers over the telephone at 1265 Simms Place, that wagers were physically turned in at 55 P Street, and that records and money were kept at 1270 Simms Place. On March 21, 1983, members of the MPD gambling squad applied for seven search warrants--one for 1265 Simms Place, one for 1270 Simms Place, one for 55 P Street, three for automobiles that appellant or his daughter had been seen driving, and one for appellant's person.

The search warrants were executed on March 28, 1983. The task of searching the apartment at 1270 Simms Place fell to two MPD gambling squad detectives accompanied by several uniformed officers. At approximately 3:15 p.m., the detectives knocked loudly on the door of Apartment 2 at 1270 Simms Place, as one of the detectives shouted, "Police officers. We have a search warrant." When no response was forthcoming, the officers twice more knocked and announced their presence. There was still no response, and the police officers thereupon broke open the door with a battering ram. According to the officers' testimony, approximately twenty-one to thirty seconds had passed between the time they first knocked on the door and the time they entered the apartment.

As the first officer entered the apartment, he saw Mr. Thornton in the middle of the apartment, walking toward the living room. The officer also heard the sound of a toilet flushing. Going directly to the bathroom, the officer saw water swirling in the toilet bowl. He stuck his hand down into the toilet and pulled out a plastic bag containing a dark brown liquid that was later identified as containing traces of heroin and quinine, a chemical often used in diluting heroin for street sale.

The officer proceeded to search the rest of the apartment. On a dinette table across from the bathroom, he found a record album with traces of powder on it (the powder was later identified as containing traces of heroin), measuring spoons, a playing card, and a yellow plastic container with a powder inside it which was later identified as quinine. The measuring spoons and playing card were later found to have on them traces of heroin and cocaine.

The officer then returned to the bathroom for a more thorough search of that room. He saw there a jalousie window near the ceiling above the toilet. The window opened upon a bricked-up air shaft. Outside the window, just below the window ledge, was a wooden platform that extended across the width of the window. By standing on the lid of the toilet, the officer could see a bag of powder about a hand's depth from the window ledge. From this position, the officer reached up and removed the bag from the platform. The bag was later found to contain four ounces of hydrogen hydrochloride (heroin) of approximately forty percent purity, with a retail or "street" value of approximately $150,000 and a wholesale value of $44,000.

The second officer, meanwhile, discovered during the search rubber gloves and surgical face masks in a potato chip box on the stereo. ¹ The gloves had traces of quinine on them. In a drawer in the kitchen table were a large number of small plastic bags, the size often used to package heroin for street sale. A device for closing and sealing plastic bags was situated near the dinette table. In a paper bag in a closet just off the dining room was a cannister containing a powder subsequently identified as mannitol, which like quinine is often used in the preparation of heroin for street sale. In the bedroom, in plain view, were narcotic "cookers" (devices used to prepare drugs for injection), and several syringes, needles, and plungers, each of which contained traces of heroin, cocaine, or quinine.

Not only narcotics and related paraphernalia, however, were seized during the search. Gambling paraphernalia were also seized in the apartment. Specifically, "run-down" tapes were found in the kitchen trash; in addition, in the front living room closet was a suitcase that contained numbers work and an adding machine.

Finally, hanging from the lock of the apartment door was a set of keys. One of the detectives testified that Mr. Thornton acknowledged that the keys belonged to him.

Meanwhile, other search warrants were being executed. Police officers knocked on the door of the apartment at 1265 Simms Place and announced their presence. No battering rams or other extraordinary devices had to be employed in this instance, however, as the door was promptly opened by appellant's daughter. The ensuing search of that apartment turned up quantities of quinine and mannitol, and small glassine bags, as well as personal papers of Charles Thornton, appellant's nephew, who, as we shall presently see, figures large in appellant's case. One of the automobiles contained electric and gas bills for the 1270 Simms Place apartment and an electric bill for the 1265 Simms Place apartment. A search of appellant's Maryland residence by members of the Prince George's County...