US v. Byars

• Decision Date: 24 April 1991
• Docket Number: Crim. No. 91-00079-A.
• Citation: 762 F. Supp. 1235
• Parties: UNITED STATES of America v. Clifton William BYARS, William Ernest Simms, Sandy Sims, Betty Carroll.
• Court: U.S. District Court — Eastern District of Virginia

762 F. Supp. 1235

UNITED STATES of America v. Clifton William BYARS, William Ernest Simms, Sandy Sims, Betty Carroll.

Crim. No. 91-00079-A.

United States District Court, E.D. Virginia, Alexandria Division.

April 24, 1991.

Jay Apperson, Asst. U.S. Atty., Alexandria, Va., for U.S.

James M. Lowe, Alexandria, Va., for Clifton William Byars.

Drewry B. Hutcheson, Jr., Alexandria, Va., for William Ernest Simms.

Joseph McCarthy, Alexandria, Va., for Sandy Sims.

Becky J. Moore, Land, Clark, Carroll & Mendelson, Alexandria, Va., for Betty Carroll.

John T. Richards, Jr., Washington, D.C., for Lisa Carroll.

MEMORANDUM OPINION

ELLIS, District Judge.

Defendants' pretrial suppression and dismissal motions attack (i) the relitigation of the suppression motion on the ground that a prior state court ruling is entitled to preclusive effect, (ii) the execution of the search warrant for failure to comply with the "knock and announce" statute, (iii) the search warrant itself on grounds of staleness, and (iv) the entire prosecution as an oppressive and impermissible effort by federal prosecutors to try again after state prosecutors have failed. For the reasons recorded here, defendants' motions fail.

On June 1, 1989, Investigator Thomas Kennedy and other Virginia law enforcement officers searched an apartment at 60 South Van Dorn Street in Alexandria pursuant to a state search warrant. The search yielded 14 ounces of cocaine, 13 ounces of marijuana, $5,000 in United States currency, a .32 caliber handgun, and various paraphernalia used in the packaging and distribution of narcotics. Based in part on the seized evidence, Assistant Commonwealth Attorney Jennifer Pollard brought state drug charges against defendants Clifton Byars and William Simms. The defendants moved to suppress the evidence, and a hearing was held before Judge Alfred D. Swersky of the Alexandria Circuit Court. Judge Swersky granted the motion by letter opinion, concluding that the Commonwealth had failed to carry its burden of showing that the search was executed in conformity with governing constitutional principles.¹ The Commonwealth Attorney's Office then nolle prosequied the charges against Byars and Simms. The federal government subsequently began an investigation into defendants' activities, and Pollard became a Special Assistant United States Attorney.²

I. Collateral Estoppel and Comity

Defendants first argue that Judge Swersky's factual and constitutional determinations should not be relitigated here. This Court, they argue, should be bound by the state court's suppression order. This argument, however inviting, is clearly incorrect. To be sure, it is established that the doctrines of res judicata and collateral estoppel apply in criminal cases, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948), and more particularly, to pretrial dispositions of issues in criminal cases. See United States v. Blackwell, 900 F.2d 742, 745 (4th Cir.1990). Equally well established is the principle that the party estopped from religitigating issues must have been a party to the initial litigation. See United States v. Smith, 446 F.2d 200 (4th Cir.1971). Smith is instructive on this point. There, the Fourth Circuit explained that "the federal government is neither the same as nor in privity with the State sic of Virginia and therefore is not barred from relitigating facts resolved in defendant's favor in the former prosecution." Id. at 202; see also 1 LaFave & Israel, Criminal Procedure § 10.6(d) (1984) ("For a ruling on a motion to suppress in a prior case to have either conclusive or presumptive effect in a later case, there must be an identity of parties."). Collateral estoppel therefore does not preclude this Court from reviewing the constitutionality of the search de novo. See United States v. Ricks, 882 F.2d 885 (4th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 846, 107 L.Ed.2d 841 (1990); United States v. Safari, 849 F.2d 891 (4th Cir.) (grant of motion to suppress in state proceeding is not accorded collateral effect on same issue in subsequent federal prosecution), cert. denied, 488 U.S. 945, 109 S.Ct. 374, 102 L.Ed.2d 363 (1988); United States v. Culbreath, 915 F.2d 1566 (4th Cir.1990).

Defendants' motion also raises, appropriately, comity considerations. Comity between federal and state courts is indeed important.³ In this situation, however, the law is clear that a federal court must make an independent determination as to the constitutionality of the search. In Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960), the Supreme Court stated that "in determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out." See also United States v. Mejias, 552 F.2d 435, 444 & n. 12 (2d Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977).

II. Knock and Announce

Consistent with the Supreme Court's direction, the Court reviewed the transcript of the state proceedings and held a de novo suppression hearing. The government elicited testimony from Investigator Kennedy and two other officers who accompanied him on the search. Defendants declined the opportunity to call witnesses, electing instead to rely on the testimony given in state court. Having considered all the evidence, the Court concludes, with some reluctance,⁴ that it must reach a different result from that reached by Judge Swersky.

Defendants' first motion to suppress relies on 18 U.S.C. § 3109, the federal "knock and announce" statute.⁵ The evidence compels the conclusion that this reliance is misplaced. To begin with, the testimony clearly establishes that the officers made their entry through a door that had been opened. Given this, the statute is inapplicable, for the majority rule is that entry through an open door is not a "breaking" within the meaning of the statute. See United States v. Remigio, 767 F.2d 730 (10th Cir.), cert. denied, 474 U.S. 1009, 106 S.Ct. 535, 88 L.Ed.2d 465 (1985) (collecting cases); see also United States v. Salter, 815 F.2d 1150 (7th Cir.1987) (police action in inducing defendant to open door by means of a ruse did not constitute intrusion within meaning of the statute). In Remigio, the court held that government officials armed with a warrant and entering a house through an open door in the presence of a defendant need not comply with 18 U.S.C. § 3109. Similarly, testimony from Investigator Kennedy and two other officers who participated in the search establish that the apartment door was opened voluntarily in response to Investigator Kennedy's knock by an individual later identified as John Sheets. Investigator Kennedy and Sheets exchanged a terse greeting, after which Kennedy, who was dressed in street clothes, identified himself as a police officer armed with a search warrant. At that point, Sheets began to close the door, but was prevented from doing so by Investigator Kennedy, who used his foot to block the door's closing. Investigator Kennedy and the other officers then forcibly entered the apartment. A review of the state suppression hearing transcript confirms that Sheets and the other defense witnesses conceded that the door was opened voluntarily in response to Kennedy's knock. Accordingly, the officers were not required to comply with the statute. Compare Remigio (statute inapplicable on facts suggesting that defendant merely opened door to peer out and was then jumped and subdued by agents who did not announce their identity or purpose prior to crossing the threshhold); see also United States v. Jackson, 585 F.2d 653, 662 (4th Cir.1978) (entry simultaneous with announcement is permissible where object of search is "susceptible of easy destruction"). Even assuming the statute's applicability, however, the Court finds credible and convincing the testimony of Kennedy and the other officers that their identity and purpose were announced prior to entry. That testimony is ample to overcome any prima facie showing of a violation established by defendants. See United States v. Murrie, 534 F.2d 695 (6th Cir.1976) (if defendant makes prima facie case of statutory violation, burden shifts to government). The officers' conduct was reasonable under the circumstances. See Simons v. Montgomery County Police Officers, 762 F.2d 30, 32 n. 1 (4th Cir.1985) (application of knock and announce requirement preliminary to search by state officers is controlled by Fourth Amendment reasonableness standard), cert. denied, 474 U.S. 1054, 106 S.Ct. 789, 88 L.Ed.2d 767 (1986).

III. Stale Warrant

Defendants' second motion to suppress is based on the argument that the probable cause supporting the warrant was stale, either because there was a nine-day delay between the issuance of the warrant and the time of its execution, or because some of the evidence to be seized was not at the apartment at the time the warrant issued. Neither claim has merit. With respect to delay, the Fourth Circuit explained in United States v. McCall, 740 F.2d 1331, 1336 (1984), that the issue of staleness is resolved by looking at "all the facts and circumstances of the case, including the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized." See also United States v. Simpkins, 914 F.2d 1054, 1059 (8th Cir.1990) (test is whether probable cause still existed at the time of execution; court must "evaluate the nature of the criminal activity and the kind of property for which authorization to search is sought") (quoting United States v. Foster, 711 F.2d 871, 878 (9th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1984)).

Viewing the facts and circumstances of this case in this...