Washington v. United States

TERRY, Associate Judge,

dissenting:

Although I agree with the general principles of law declared in the majority opinion, I cannot join my colleagues in their application of those principles to the facts of this case. I would affirm the denial of the motion to suppress the gun on the ground that the police were justified by exigent circumstances in doing exactly what they did. As I see it, the critical fact confronting the police officers was the locked bedroom door. Having been told by appellant’s sister that appellant was in the bedroom behind that door with a gun — an Uzi machine gun, as it turned out, though they did not know this at the time — and receiving no response when they knocked and asked appellant to come out, the police acted reasonably, in my judgment, when they forcibly entered the bedroom and seized the gun.1

The factors to be weighed by a court in assessing a claim of exigent circumstances are set forth in Dorman v. United States, 140 U.S.App.D.C. 313, 320-321, 435 F.2d 385, 392-393 (1970) (en banc), and summarized in the majority opinion, ante at 169. See also Sturdivant v. United States, 551 A.2d 1338, 1341 (D.C.1988), cert. denied, — U.S. -, 110 S.Ct. 370, 107 L.Ed.2d 356 (1989); United States v. Minick, 455 A.2d 874, 876 (D.C.) (en banc), cert. denied, 464 U.S. 831, 104 S.Ct. 111, 78 L.Ed.2d 112 (1983). In each case the court must look to the particular facts before it in deciding whether the requisite emergency existed. United States v. McKinney, 155 U.S.App. D.C. 299, 301, 477 F.2d 1184, 1186 (1973). Furthermore, though there are seven “indi-cia of exigency” on the Dorman checklist, *173we have made clear that they need not all be present to justify a warrantless search or seizure. Gaulmon v. United States, 465 A.2d 847, 850 (D.C.1983) (citing cases); see Derrington v. United States, 488 A.2d 1314, 1324 (D.C.1985). The presence and accessibility of a gun, in particular, can make “the situation more pressing and the emergency more critical” because of the potential threat to human life. United States v. Allison, 205 U.S.App.D.C. 270, 272, 639 F.2d 792, 794 (1980) (citations omitted); accord, Sturdivant v. United States, supra, 551 A.2d at 1342 (citing cases).

The officers arriving at appellant’s home were informed by her sister that appellant was in the bedroom with a gun. Although it is not clear from the record that they then knew she had threatened to use the gun,2 there was ample evidentiary support for the court’s finding that “the officers were able to perceive the fright from the sister” and to determine, not only from her words but from the surrounding circumstances, that they were “presented [with] some life-threatening situation.” Two more facts became known almost immediately: (1) the locked door, and (2) the lack of any response from appellant, whom they knew to be behind that door, when they knocked and asked her to come out.

I would hold that all of these facts, taken together, were sufficient to constitute “exigent circumstances” as that term has evolved in our case law. The police officers, faced with a threat of imminent physical danger, not only to themselves but also to appellant’s sister, could not reasonably be expected to withdraw from the scene and seek a warrant from the handiest magistrate. Because the door was locked, they could not remove the threat of violence by any means other than breaking the door down and entering by force. Even their discovery of appellant sitting on the bed did not dissipate the threat, for they did not then know whether the gun was within her reach. Lieutenant Kishpaugh specifically testified on this point. He said that when he and another officer entered the bedroom, they found appellant sitting on the bed with her child. Kishpaugh looked around the room and saw no gun. He inquired, “Where is the gun?”, and appellant replied, “I have no gun.” When asked why he did not then leave to get a warrant, Kishpaugh said:

I wasn’t really sure that she didn’t still constitute a threat to myself and the other officer, sir. A few days prior to that, I had been on another assignment for a subject [with] a gun, and the subject had been sitting in a chair and sitting on the gun. [Emphasis added.]

Just as “[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape,”3 it did not require the police officers in this case to ignore the threat to their safety (and that of appellant’s sister and son) presented by someone reliably4 said to have a gun, even though no gun was visible at that moment.

Finally, I cannot agree that the exigency was dissipated when the police entered the room and found appellant and her son sitting peacefully on the bed. As a matter of common sense, the exigency would continue to exist until the gun was found, for until then the police could not be sure that it was beyond appellant’s reach. She could have been sitting on it, as Lieutenant Kish-paugh’s testimony suggests, or it could *174have been under the pillow or the bedcov-ers, or even inside appellant’s clothing.5 In Sturdivant v. United States, supra, the appellant made a similar argument that the search for a sawed-off shotgun was invalid because it was not conducted until after the two suspects had been arrested and taken to the police station. We gave this argument short shrift:

At the time the police commenced the search, they knew that a sawed-off shotgun had been used in a serious crime and that it had not been retrieved. We have observed that the presence of such weapons creates a special exigency because of their potential threat to human life.... In addition, the police knew that if the gun remained in the house after appellant and Jones were removed, the other members of the family who had not been arrested would still have access to it and could use or destroy it.... Thus, the exigencies present when the officers entered the house did not disappear simply because all persons in the house apparently had been located and the suspects had been arrested.

551 A.2d at 1342 (citations omitted and emphasis added). Although Sturdivant is not precisely congruent with the instant case on its facts, I think it is close enough to serve as a dispositive precedent.

The Fourth Amendment does not prohibit all searches and seizures, but only those that are “unreasonable.” I would uphold as reasonable everything that the police did in this case, and would therefore affirm the judgment.

. I agree with the statement in footnote 1 of the majority opinion that "there is no issue of consent in this case.” On the facts before us, appellant’s sister clearly had no authority to permit a search of appellant’s bedroom.

. There was testimony from one of the officers, Lieutenant Lonnie Kishpaugh, that the sister said appellant "had threatened to hurt her with the gun," but that she did not make this statement until after the gun was recovered.

. Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612 (1972).

. This court, in a variety of factual settings, has often "presumed that a citizen is prima facie a more credible source than a paid police informant.” Rushing v. United States, 381 A.2d 252, 255 (D.C.1977) (citation and footnote omitted). "If the citizen claims or appears to be a victim of a crime or an eyewitness to a crime, the reliability of his or her information is greatly enhanced.” Allen v. United States, 496 A.2d 1046, 1048 (D.C.1985) (citations omitted). No claim is made in this case that the information provided by appellant’s sister was not reliable.

. At this point the police did not know that the weapon was a machine gun; they knew only that it was a "gun” of some kind, not further identified.