U.S. v. White, 74-1541

• Decision Date: 12 February 1975
• Docket Number: No. 74-1541,74-1541
• Citation: 168 U.S.App.D.C. 309,514 F.2d 205
• Parties: UNITED STATES of America v. Orson G. WHITE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 205

514 F.2d 205

168 U.S.App.D.C. 309

UNITED STATES of America v. Orson G. WHITE, Appellant.

No. 74-1541.

United States Court of Appeals, District of Columbia Circuit.

Feb. 12, 1975.

Gerry Levenberg, Washington, D. C. (appointed by this court) was on the brief for appellant.

Earl J. Silbert, U. S. Atty., John A. Terry, S. Allen Early, III, and Michael H. Gertner, Asst. U. S. Attys., were on the brief for appellee. Bette E. Uhrmacher, Asst. U. S. Atty., entered an appearance for appellee.

Before McGOWAN, MacKINNON and WILKEY, Circuit Judges.

PER CURIAM:

On April 2, 1974, appellant was found guilty of possessing both heroin (Count 1) and cocaine (Count 3) with intent to distribute (21 U.S.C. § 841(a) ), and possession of an unregistered firearm, a sawed-off shotgun (Count 5) (26 U.S.C. § 5861(d) ). Two weeks later on April 15th, appellant moved the court to reconsider his pretrial motion to suppress evidence, which the court had denied. This motion was coupled with a request for bond pending sentence. On April 18th, without any further hearing, the court denied both motions. On May 9, 1974, the court adjudged sentences of four to twelve years each on counts 1 and 3 and five years on count 5, all sentences to run concurrently with a special parole term of three years. ¹ From that judgment this appeal was taken.

The appeal makes no attack whatsoever upon the sufficiency of the evidence to support the convictions. Instead, as the brief of appellant states, the "single issue . . . presented . . . (is) whether the District Court abused its discretion by denying defendant's motion for reconsideration of" its decision on his pretrial motion to suppress all the material tangible evidence in the case on the claim that the police officers did not properly knock and announce their identity and purpose when they broke down the door of appellant's house to execute a validly issued search warrant. The resulting search turned up the contraband heroin, cocaine, some narcotic packaging material and instruments, and the sawed-off shotgun and ammunition. If such vital evidence were suppressed the Government would be hard put to prove its case.

Appellant alleges on this appeal that the court abused its discretion when it denied his motion to reconsider its decision denying his pretrial suppression motion. The latter motion was based on an alleged proffer of "newly discovered evidence (which) will not impact directly on the case in chief; rather, it reaches factual circumstances which may affect a ruling on the admissibility of evidence." Appellant's Reply Br., p. 6. In substance, the claim is that the alleged newly discovered evidence testimony by a former policeman who participated in the raid would raise a reasonable doubt as to the credibility of the testimony of certain other police officers that they complied with the requirements of 18 U.S.C. § 3109 before making their entry. This was the same tactic that appellant pursued in his pretrial motion. The statute provides:

§ 3109. Breaking doors or windows for entry or exit.

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. (June 25, 1948, ch. 645, 62 Stat. 820.)

We have held that a declaration that those who seek entry are police officers complies with the statutory requirement of announcement of authority, United States v. Harris, 140 U.S.App.D.C. 270, 278, 435 F.2d 74, 82 (1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 152 (1971); Gatlin v. United States, 117 U.S.App.D.C. 123, 130, 326 F.2d 666, 673 (1963). We have also concluded that the requirement of an announcement of purpose does not apply in certain exigent circumstances for example, where such an announcement would be a "useless gesture," United States v. Wylie, 149 U.S.App.D.C. 283, 291-92, 462 F.2d 1178, 1186-87 (1972); Bosley v. United States, 138 U.S.App.D.C. 263, 269, 426 F.2d 1257, 1263 (1970); or where it would create "palpable peril to the life or limb of the arresting officers," Harris, supra, 140 U.S.App.D.C. at 279, 435 F.2d at 83. Appellant nevertheless continues to allege that the police did not make a valid announcement and claims that under the circumstances "the court should hear additional testimony on this issue." At best, the testimony he now offers would be cumulative of what was offered on the pretrial motion. The situation here is akin to a motion for new trial on the basis of newly discovered evidence.

In Thompson v. United States, 88 U.S.App.D.C. 235, 188 F.2d 652 (1951), we set out a few of the requirements that must be satisfied in such situations:

"The trial court has a broad discretion as to whether a new trial should be granted because of newly discovered evidence, and its action will not be disturbed on appeal unless an abuse of that discretion appears." To obtain a new trial because of newly discovered evidence (1)...