Griffin v. United States

TERRY, Associate Judge,

dissenting:

The question presented by this appeal is whether the arresting officers were “refused admittance” within the meaning of D.C.Code § 33-565(g) (1988) 1 and hence were justified in forcibly entering the apartment to execute their search warrant. Guided by long-established precedent, and giving the requisite deference to the trial court’s findings of fact, I would uphold the trial court’s denial of appellant’s motion to suppress evidence and affirm the judgment of conviction. Since my colleagues take a different view, I respectfully dissent.

I

At approximately 1:35 a.m., Officer Curt Sloan and several other members of the Metropolitan Police went to an apartment *126 on Mellon Street, S.E., to execute a search warrant for narcotics and drug paraphernalia. The warrant was based on a previous late-night purchase of narcotics at the same address by an informant. As the informant had done, the search team went to the side door of the apartment. That door had no windows, and, according to the testimony, the windows at the front of the apartment were “covered with a heavy-type material” so that no light emanated from inside. The officers could not hear any sounds coming from the apartment.

At the side door, Officer Sloan knocked loudly and announced, “Police, I have a search warrant, open up.” About ten seconds passed without a response, and Officer Sloan repeated the knocking and announcement. After waiting an additional ten seconds without receiving a response, the officers used a battering ram to force their way in. The total elapsed time between Officer Sloan’s initial knock and the search team’s forced entry was approximately thirty seconds.

Once inside the apartment, the officers found appellant Griffin lying on a sofa in the living room. On a nearby coffee table lay a plastic bag containing “a white rock substance” which turned out to be crack cocaine. The search team placed Griffin under arrest and seized the plastic bag and its contents.

II

The District of Columbia “knock and announce” statute, D.C.Code § 33-565(g) (1988), is identical to its federal counterpart, 18 U.S.C. § 3109 (1988). Williams v. United States, 576 A.2d 700, 703 (D.C.1990). The federal courts have construed the statutory language to allow for a “constructive refusal” of admittance. “[T]he phrase ‘refused admittance’ is not restricted to an affirmative refusal.” Masiello v. United States, 115 U.S.App.D.C. 57 , 58, 317 F.2d 121, 122 (1963). Thus the police may forcibly enter a dwelling if they can reasonably infer from the action or inaction of the occupants that they have, “in effect, been refused admittance.” United States v. Bonner, 277 U.S.App.D.C. 271, 273 , 874 F.2d 822, 824 (1989). In considering a claim of constructive refusal, the courts engage in “a highly contextual analysis, examining all the circumstances of the case,” to determine whether the police inference was reasonable. Id.

A common example of constructive refusal is the occupant’s failure to respond to a police officer’s request for admittance. If the officer announces his or her purpose and authority pursuant to a search warrant, and the occupant does not respond within a reasonable period of time, the officer may forcibly enter. United States v. Wood, 279 U.S.App.D.C. 81, 86 , 879 F.2d 927, 932 (1989). The length of time that the police must wait before they may construe a lack of response as a denial of admittance “depends largely on factual determinations made by the trial court.” United States v. Davis, 199 U.S.App.D.C. 95, 113 , 617 F.2d 677, 695 (1979) (citation omitted), cert. denied, 445 U.S. 967 , 100 S.Ct. 1659 , 64 L.Ed.2d 244 (1980). Although there is nothing in either the federal or the local statute prescribing how long the police must wait after knocking and announcing, see Masiello, supra, 115 U.S.App.D.C. at 58, 317 F.2d at 122 , a reasonable time “is ordinarily very brief.” United States v. James, 528 F.2d 999, 1017 (5th Cir.1976) (citation omitted); see, e.g., United States v. Bonner, supra, 277 U.S.App.D.C. at 275 , 874 F.2d at 826 (eleven to twelve seconds); United States v. Ciamitti, 720 F.2d 927 (6th Cir.1983) (thirty seconds), cert. denied, 466 U.S. 970 , 104 S.Ct. 2342 , 80 L.Ed.2d 816 (1984); United States v. Wysong, 528 F.2d 345 (9th Cir.1976) (five to ten seconds); United States v. Woodring, 444 F.2d 749 (9th Cir.1971) (one minute); Masiello, supra, 115 U.S.App.D.C. at 58, 317 F.2d 121 (ten to thirty seconds after the first knock, plus ten to twenty seconds after the second knock).

In considering Griffin’s arguments, this court must afford to the government, as appellee, all legitimate inferences from the testimony and uncontroverted facts of the record, and must affirm the trial court’s denial of the motion to suppress if it is *127 supportable under any reasonable view of the evidence. E.g., United States v. Rorie, 518 A.2d 409, 410 (D.C.1986); United States v. Covington, 385 A.2d 164, 166 (D.C.1978); Brooks v. United States, 367 A.2d 1297, 1304 (D.C.1976). Thus the trial court’s factual findings must be upheld unless they are clearly erroneous. E.g., Lawrence v. United States, 566 A.2d 57, 60 (D.C.1989); see D.C.Code § 17-305(a) (1989).

In this case the court relied on four facts in determining that the officer’s forced entry was permissible: (1) Officer Sloan knocked “not once but twice in a loud manner,” (2) the officers waited approximately thirty seconds before forcing entry, (3) there was information in the affidavit supporting the search warrant that drugs had recently been sold in the apartment “around midnight,” and (4) a heavy material covered the front windows, “which would suggest closing people out and keeping people from seeing light if it was on in there, seeing what was going on inside.” The court held that these facts, viewed in combination, placed the officers within “a certain zone of reasonableness” in concluding that they had been constructively refused admittance.

Griffin contends that the thirty seconds between the initial knock and the forced entry was an unreasonably short time to allow for a response because it was 1:35 a.m., a time when the occupants of the apartment would most probably be asleep. I agree that the very late hour makes this a close case, but I think my colleagues in the majority give it too much weight. The trial court found, in light of all the relevant factors — including, but not limited to, the time of night — that the forced entry was reasonable, and we cannot ignore or overturn that finding because there is evidence to support it. The hour at which police officers execute a search warrant is surely a factor to be considered in deciding the reasonableness of a forced entry, but it is just as surely not the only factor. Nor, on the facts of this case, is it dispositive. As the government points out in its brief, “the time of night when the search took place was reasonably tied to information related to the search warrant. Specifically, 1:35 a.m. was a time of night that the officers could reasonably expect that drug transactions might occur at [the apartment].” Moreover, the fact that a heavy material covered the front windows and prevented light from escaping could reasonably sustain an inference that the occupants were not only awake but engaged in illicit activity, such as preparing drugs for sale. Thus the inference that the occupants were likely to be awake is supportable under a reasonable view of the evidence.

Another factor to be considered as favoring a forcible entry is the possible “imminent destruction of evidence.” Williams v. United States, supra, 576 A.2d at 703 (citation omitted); accord, e.g., United States v. Wysong, supra, 528 F.2d at 348. Here the officers were acting under the authority of a search warrant for drugs, and were therefore justified in believing that drugs were present in the apartment. United States v. Wood, supra, 279 U.S.App.D.C. at 87 , 879 F.2d at 933 . Under the circumstances the trial court could find it reasonable for the officers to expect that the occupants might try to dispose of the drugs upon being told that the police were about to enter and conduct a search. The thirty-second interval between the initial knock and the forced entry gave the occupants enough time to respond to the officers’ request for admittance, without also giving them an opportunity to dispose of the drugs.

Finally, the fact that Officer Sloan knocked and gave notice of his purpose and authority twice, rather than once, before the search team forcibly entered the apartment is another factor to be considered. Because the officer was knocking on the door of an apartment rather than, say, a three-story house, one could reasonably infer that the knocks and announcements were audible anywhere inside the premises. Likewise, it is reasonable to infer that thirty seconds were an ample amount of time to elicit a response within a dwelling of this size. In these circumstances, the lack of a response from the occupants after two in *128 stances of loud knocking and two requests for admittance could reasonably lead the officers to believe the occupants were deliberately ignoring their requests.

All of these factors, viewed as a whole, support the trial court’s ruling that the officers were within “a certain zone of reasonableness” in believing they had been constructively refused admittance and that they were therefore justified in breaking down the apartment door with a battering ram. I would hold, therefore, that there was no violation of the “knock and announce” statute, D.C.Code § 33-565(g). Because the majority concludes otherwise, I must dissent.

. D.C.Code § 33-565(g) provides:

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 the warrant, if, after notice of his authority and purpose, he is refused admittance.