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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 2003 Decided April 30, 2004
No. 02-3094
UNITED STATES OF AMERICA,
APPELLEE
v.
MALACHI GOREE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00319–01)
A. J. Kramer, Federal Public Defender, argued the cause
for appellant. With him on the briefs was Sean C. Grimsley,
Assistant Federal Public Defender.
Valinda Jones, Assistant U.S. Attorney, argued the cause
for appellee. On the brief were Roscoe C. Howard, Jr., U.S.
Attorney, John R. Fisher, Kathleen M. Konopka, and Roy W.
McLeese III, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Malachi Goree pled guilty to
unlawful possession of a firearm and ammunition by a convict-
ed felon in violation of 18 U.S.C. § 922(g), but reserved his
right to appeal the denial of his motion to suppress incrimina-
ting evidence and statements. Because we do not have a
sufficient factual record upon which to assess the constitution-
ality of the search that produced this evidence, we remand for
further proceedings.
I
In the late morning of June 22, 2001, Metropolitan Police
Department Officers Maradiaga and Moon received a radio
dispatch reporting a domestic assault in progress at Apart-
ment 204, 2540 Elvans Road, in Southeast Washington, D.C.
The officers arrived on the scene within minutes and knocked
loudly on the door of the apartment. There was no response.
They then radioed their dispatcher, who advised that a repre-
sentative of the building’s management company would meet
them with a spare key. When the representative arrived, he
used a two-way radio to call the eyewitness to the assault,
another employee of the management company. As Officer
Maradiaga listened, the employee explained that he had seen
a man accost a woman and drag her by her hair into
Apartment 204.
The officers opened the apartment door with the spare key
and announced themselves as police. The apartment was
dark: drapes covered the windows, and only a dim light was
on in the dining room area. Peering inside, the officers saw a
man and woman — later identified as defendant Goree and
his then-girlfriend (and the apartment’s leaseholder) Kenzie
Lemons — walking toward them from a rear room. Officer
Maradiaga ordered the defendant to stop moving and to put
his hands in the air. Goree did not comply; instead, he
continued to come toward the officers. Maradiaga then en-
3
tered the apartment, grabbed Goree’s hands, and handcuffed
him.
As discussed below, the testimony at the suppression hear-
ing concerning the apartment’s layout lacks significant de-
tails. It does establish, however, that the apartment was
small, and that it consisted of one bedroom off a main
hallway, a combined living room-dining room area, and a
kitchen adjacent to the dining room area. The sequence of
events following Goree’s handcuffing is also unclear, but at
some point soon thereafter, the police made a brief visual
sweep of the apartment to ensure that no other individuals
were present.
Officer Maradiaga then asked Goree to sit at the dining
room table. Goree physically and verbally resisted, insisting
that he wanted to sit on the living room couch instead. But
because the couch was covered with boxes, Maradiaga pro-
ceeded to walk Goree into the dining area, where the officer
saw a loaded, semiautomatic gun magazine (an ammunition
clip) in plain sight on the dining room table.
Concerned that the presence of the magazine indicated the
presence of a weapon, Maradiaga asked Lemons and Goree
whether there was a gun in the house. Goree did not
respond; Lemons said there was no gun. Maradiaga, howev-
er, was not persuaded. He testified that he had had consid-
erable experience investigating domestic-violence incidents,
and that in his experience, ‘‘whoever is the complainant at the
time, will not be responsive to the police and will usually lie to
cover for the other partner.’’ App. 195–96. He therefore
asked Lemons for permission to search for a weapon. Al-
though Maradiaga testified that she responded, ‘‘Fine. Go
ahead,’’ the district court later concluded that it was ‘‘not
persuaded TTT that what she gave was consent.’’ Id. at 178.
Maradiaga testified that Officer Moon then walked into the
kitchen, where he saw a semiautomatic pistol lying on top of
the refrigerator. At some point during the course of this
search, two police sergeants also arrived on the scene.
After discovering the gun, the officers formally placed
Goree under arrest and drove him to the police station.
4
There he was read his Miranda rights and questioned about
the gun and ammunition. At the conclusion of the interview,
Goree signed a document stating that he was ‘‘holding’’ the
gun for a man called ‘‘L.B.,’’ and that L.B. ‘‘put the clip on top
of TTT the kitchen table.’’ Id. at 2–4.1
Goree moved to suppress both the gun and the statements
as fruits of an unlawful, warrantless search. Although the
district court rejected the government’s contention that the
officers had obtained valid consent to search the kitchen, it
nonetheless denied the motion to suppress, relying primarily
on the ‘‘exigent circumstances’’ exception to the Fourth
Amendment’s warrant requirement.2 After losing the motion
1Lemons was also questioned by the officers immediately after
the gun was found and later signed a written statement. The
parties agree that her statement plays no part in this appeal.
2 The district court also relied on the ‘‘inevitable discovery’’
doctrine, under which unlawfully obtained evidence is admissible if
it ‘‘ultimately or inevitably would have been discovered by lawful
means.’’ Nix v. Williams, 467 U.S. 431, 444 (1984); see also United
States v. Gale, 952 F.2d 1412 (D.C. Cir. 1992). The government
based its inevitability claim on the testimony of Officer Maradiaga
and Sergeant Caldwell, each of whom testified that, but for Maradi-
aga’s mistake about consent, he would have stopped the search and
sought a warrant. We are dubious that such conjectural testimony
is adequate to support applying the doctrine to this case. See Nix,
467 U.S. at 444 n.5 (holding that ‘‘inevitable discovery involves no
speculative elements but focuses on demonstrated historical facts
capable of ready verification or impeachment’’). Moreover, while
the circuits disagree over the scope of the doctrine, neither this nor
any other circuit has yet extended it as far as would be required to
justify the gun’s seizure here. See, e.g., Gale, 952 F.2d at 1415
(holding that drugs seized from defendant’s person and automobile
trunk, based on statements taken without Miranda warnings, would
inevitably have been discovered in a search incident to arrest and a
post-impoundment inventory search); United States v. Dice, 200
F.3d 978, 986 (6th Cir. 2000) (holding that the government must
‘‘proffer clear evidence of an independent, untainted investigation
that inevitably would have uncovered the same evidence as that
discovered through the illegal search’’) (internal quotation marks
omitted); United States v. Allen, 159 F.3d 832, 839–40 (4th Cir.
5
to suppress, Goree entered a conditional plea of guilty pursu-
ant to Federal Rule of Criminal Procedure 11(a)(2), reserving
his right to take this appeal.
II
Under the Fourth Amendment, a ‘‘search or seizure carried
out on a suspect’s premises without a warrant is per se
unreasonable, unless the police can show that it falls within
one of a carefully defined set of exceptions.’’ Illinois v.
Rodriguez, 497 U.S. 177, 191 (1990) (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 474 (1971)). One such exception is
for ‘‘exigent circumstances,’’ and the ‘‘Supreme Court has
consistently held that a warrantless search of a residence
does not violate the fourth amendment when exigent circum-
stances exist.’’ United States v. Mason, 966 F.2d 1488, 1492
(D.C. Cir. 1992) (citing, inter alia, Mincey v. Arizona, 437
U.S. 385, 393–94 (1978), and Warden v. Hayden, 387 U.S. 294,
298 (1967)). ‘‘The police,’’ however, ‘‘bear a heavy burden in
attempting to demonstrate an urgent need that might justify
1998) (holding that inevitability was not established by an officer’s
testimony that, if she had not mistakenly thought that the defen-
dant’s bag had been abandoned, she would have used her narcotics
dog to sniff the bag and establish probable cause for a warrant).
Compare United States v. Silvestri, 787 F.2d 736, 745–46 (1st Cir.
1986) (concluding that, although ‘‘[i]n cases where a warrant is
obtained TTT the active pursuit requirement is too rigid,’’ a require-
ment that the police were actively pursuing an alternative lawful
means of obtaining the evidence may ‘‘be appropriate in illegal
search cases where no warrant is ever obtained’’), with United
States v. Cherry, 759 F.2d 1196, 1206 (5th Cir. 1985) (holding that
the prosecution normally must show ‘‘that the government was
actively pursuing a substantial alternate line of investigation at the
time of the constitutional violation’’ for the inevitable discovery
exception to apply). Because application of the exigent circum-
stances exception should be straightforward once the factual dis-
crepancies discussed below are resolved, we defer a ruling on the
more novel inevitable discovery claim unless and until it becomes
necessary to resolve this case.
6
warrantless searches.’’ Welsh v. Wisconsin, 466 U.S. 740,
749–50 (1984).
Although the Supreme Court has never provided a com-
plete catalog of the exigencies that satisfy the exception, see
United States v. Dawkins, 17 F.3d 399, 405 (D.C. Cir. 1994), it
has recognized that ‘‘[t]he need to protect or preserve life or
avoid serious injury is justification for what would be other-
wise illegal absent an exigency or emergency.’’ Mincey, 437
U.S. at 392 (internal citation and quotation marks omitted).
As the Court said in Warden v. Hayden, the ‘‘Fourth Amend-
ment does not require police officers to delay in the course of
an investigation’’ in order to obtain a warrant, ‘‘if to do so
would gravely endanger their lives or the lives of others.’’
387 U.S. at 298–99.3 The ‘‘question of whether there were
‘exigent circumstances’ is judged according to the totality of
the circumstances,’’ and the standard ‘‘is an objective one,
focusing on what a reasonable, experienced police officer
would believe.’’ In re Sealed Case, 153 F.3d 759, 766 (D.C.
Cir. 1998) (internal quotation marks and citations omitted);
see United States v. Socey, 846 F.2d 1439, 1446–47 (D.C. Cir.
1988).
Finally, in addition to the requirement that ‘‘the police have
a reasonable belief in the existence of the exigency,’’ the
subsequent search must be ‘‘no broader than necessary.’’
Mason, 966 F.2d at 1492. Courts adjudicating the lawfulness
of a search under this exception weigh the degree of intrusion
against the exigency that is its rationale. See Socey, 846 F.2d
at 1448; United States v. Lopez, 989 F.2d 24 (1st Cir. 1993).
As the Court said in Mincey, ‘‘a warrantless search must be
‘strictly circumscribed by the exigencies which justify its
initiation.’ ’’ Mincey, 437 U.S. at 393 (quoting Terry v. Ohio,
392 U.S. 1, 26 (1968)).
3See Minnesota v. Olson, 495 U.S. 91, 100 (1990) (noting that ‘‘a
warrantless intrusion may be justified by TTT the risk of danger to
the police or to other persons’’) (citations omitted); In re Sealed
Case, 153 F.3d 759, 765–66 (D.C. Cir. 1998); Dorman v. United
States, 435 F.2d 385 (D.C. Cir. 1970) (en banc).
7
We review de novo the district court’s legal conclusion that
a warrantless search was justified by the exigent circum-
stances exception, Sealed Case, 153 F.3d at 764, but review its
‘‘findings of historical fact only for clear error and TTT give
due weight to inferences drawn from those facts,’’ Ornelas v.
United States, 517 U.S. 690, 699 (1996). In Part III we
address the legal issues posed by the search of the kitchen in
this case. In Part IV we address the factual uncertainties
that occasion a remand.
III
Goree maintains a single challenge on this appeal. He
concedes that ‘‘exigent circumstances justified the initial war-
rantless entry of the apartment and subsequent seizure of the
gun magazine clip’’ in the dining room area. Appellant’s Br.
at 17. And he does not dispute that the officers’ first look
into the adjoining rooms — including the kitchen — was
justified as a ‘‘protective sweep’’ for dangerous persons under
Maryland v. Buie, 494 U.S. 325 (1990). See id. at 334 (‘‘[A]s
an incident to the arrest the officers could, as a precautionary
matter and without probable cause or reasonable suspicion,
look in closets and other places immediately adjoining the
place of arrest from which an attack could be launched.’’).4
Goree argues only that the seizure of the gun was the product
of a second warrantless search of the kitchen, unjustified by
exigent circumstances. To explore the validity of this claim,
we first address it in light of the government’s view of the
facts.
The officers were called to the scene by a radio report of a
‘‘code one,’’ indicating that a violent crime — in this case, a
domestic assault — was in progress. Officer Maradiaga
testified that, in his experience, domestic disturbances are
unpredictable and dangerous, both to the participants and to
the investigating officers. App. 195–97; see Tierney v.
Davidson, 133 F.3d 189, 197 (2d Cir. 1998) (noting ‘‘the
4 The government, for its part, forswears reliance on Buie as
justification for the search that actually resulted in discovery of the
gun. Appellee’s Br. at 12 n.3.
8
combustible nature of domestic disputes’’).5 The 911 call that
prompted the dispatch was confirmed by a second contact
when the police arrived on the scene: a building employee
reported having seen a man drag a woman into the apartment
by her hair. The officers’ concern was heightened when the
apartment’s occupants failed to respond to their knock at the
door. When the officers opened the door, they found the
apartment poorly lit. Their apprehension was heightened
still further by Goree’s defiance of their initial order to stop
approaching them, and by his resistance to their efforts to
seat him in the dining area. Although Lemons told the police
that there was no problem, Maradiaga testified that, in his
experience, victims of domestic violence may lie to protect
their partners. See also United States v. Bartelho, 71 F.3d
436, 442 (1st Cir. 1995). Finally, the officers’ anxiety ripened
into full-blown fear of violence when they spotted a loaded
magazine for a semiautomatic weapon. As Maradiaga testi-
fied, his ‘‘first thought upon seeing [the] magazine’’ on the
dining room table was that there was a weapon in the house
that could be used against him or his partner. App. 195.
These events combined to generate a reasonable belief that
the officers were faced with an exigency requiring immediate
action to avoid serious injury or loss of life. The presence of
the ammunition provided probable cause both to arrest Goree
for unlawful possession of the magazine, and to believe that
the firearm that the magazine fit was nearby.6 That gun
5 That fact alone is not enough, of course, to create an exception
to the warrant requirement. See Mincey, 437 U.S. at 395 (rejecting
a ‘‘murder scene exception’’ to the warrant requirement).
6 Cf. United States v. Brown, 334 F.3d 1161, 1171 (D.C. Cir. 2003)
(holding that ‘‘the presence of a gun’’ in a car’s passenger compart-
ment supported the possibility that the car’s trunk ‘‘contained
ammunition, additional weapons, and/or other contraband’’); United
States v. Christian, 187 F.3d 663, 669 (D.C. Cir. 1999) (noting that
‘‘the presence of one weapon may justifiably arouse concern that
there may be more in the vicinity’’); United States v. Abdul–
Saboor, 85 F.3d 664, 670 (D.C. Cir. 1996) (holding that, having
already uncovered two guns ‘‘and a magazine, the arresting officers
could well anticipate that other weapons were stowed throughout
9
posed a serious danger to the police if Goree were to obtain it
in an effort to resist arrest. The gun also posed a threat to
Lemons if Goree were to obtain it in an effort to continue
their reported domestic dispute. As the district court noted,
such disputes: ‘‘are extremely volatile and unpredictable.
And for police officers to conclude that they better find that
gun lest the situation explode in some unpredicted fashion is
not an unreasonable decision to make.’’ App. 237. The fact
that Goree was handcuffed reduced, but did not eliminate, the
risk to the officers: although handcuffed, he was not immobi-
lized. Cf. United States v. Abdul–Saboor, 85 F.3d 664, 670–71
(D.C. Cir. 1996) (sustaining warrantless search of a room in
which the defendant had been arrested, notwithstanding that
he was ‘‘handcuffed, sitting on a chair’’ four feet outside the
room with two marshals, because the room was ‘‘conceivably
accessible’’ to him).
Nor was Goree the only potential threat. It was also
reasonable to fear that Lemons would try to use the gun to
protect her boyfriend from the police. She was, as she later
testified, hostile to the officers’ presence. App. 138–40. Nor
could the police be certain that, if Lemons obtained the gun,
she would not use it to retaliate against Goree himself: the
officers were told that a man had just dragged a woman into
Apartment 204 by her hair. As described by the government,
Lemons was not restrained during this period, but was mov-
ing ‘‘freely’’ about the apartment. Appellee’s Br. at 28.
Finally, we must consider whether the search that the
police conducted in response to these perceived threats was
‘‘limited in scope and proportionate to the exigency excusing
the warrant requirement.’’ Socey, 846 F.2d at 1448. As
noted above, Goree does not dispute the officers’ lawful
presence in the dining room.7 Hence, the only incursion at
the apartment, perhaps even within the area in which [the defen-
dant] was seated’’).
7 Nor does he dispute that a warrantless search of the dining area
itself would have been justified as a search incident to arrest. Oral
Arg. Tape at 4:05–6:15; see Chimel v. California, 395 U.S. 752
(1969); Sealed Case, 153 F.3d at 767–68. The government did not
10
issue is whatever further steps were required to put Officer
Moon in a position to see the gun on top of the refrigerator.
Indeed, because Goree also does not challenge the officers’
first look into the kitchen for possible confederates, the only
incremental incursion was Moon’s second, wider look at that
same space. The district court described the scope of that
incursion as follows:
The search for the gun took them to an adjacent room
which was the kitchen and that is where the gun was
discovered. The gun was not discovered under a mat-
tress or behind a curtain. The gun was not discovered in
a drawer or in a pocketbook. The gun was discovered
out in plain view on top of a refrigerator.
The person who discovered it was 6’–2’’. The refriger-
ator was shorter than that, and it is not unreasonable to
conclude that upon his entering the room and scanning
it, the gun became immediately visible to him.
App. 237 (emphasis added).
One inference from the court’s statement that the gun
became immediately visible ‘‘upon his entering the room’’ is
that the only incursion that took place was Moon’s crossing of
a threshold separating the dining area from the kitchen.
Such a step or two would certainly be limited and proportion-
al to the exigency. As we have said, the presence of the
ammunition clip provided probable cause to believe that a
firearm was nearby. And it was reasonable for the officers to
fear that Goree or Lemons could obtain that weapon if it were
located just steps inside an ‘‘adjacent’’ room. Id. Crossing a
threshold (or even opening a door, although no witness men-
tioned a door) would not have precluded either of them from
grabbing the weapon.8 Nor would the fact that Goree was
argue, however, that the search-incident-to-arrest exception extend-
ed to the kitchen.
8Cf. Michigan v. Long, 463 U.S. 1032, 1049 (1983) (upholding the
search of a car, next to which the defendant had been standing at
the time of a Terry stop, because of the possibility that he could
enter the car and obtain a knife); Christian, 187 F.3d at 671 (same
11
handcuffed. See Abdul–Saboor, 85 F.3d at 670–71. Accord-
ingly, on this inference from the district court’s description, it
would appear that the necessary exigent circumstances exist-
ed to justify the search that led to the discovery of the
semiautomatic pistol.
Goree objects that such a conclusion is inconsistent with
our decision in United States v. Ford, 56 F.3d 265 (D.C. Cir.
1995). In that case, the court held that the ‘‘protective
sweep’’ exception of Maryland v. Buie authorized an FBI
agent to look for possible confederates in a bedroom adjacent
to the hallway in which he had arrested the defendant, and to
seize an ammunition clip that he found there in plain view.
Ford, 56 F.3d at 266. As Goree stresses, however, Ford
further held that the ‘‘agent could not TTT lawfully search
beyond that — neither under the mattress nor behind the
window shades’’ — under either the protective sweep or the
exigent circumstances exception. Id. For that reason, the
court concluded that evidence seized from under the mattress
and behind the shades was inadmissible at trial. Id.
On the government’s view of the facts, Goree’s case is quite
different from Ford’s. First, the nature of the exigency was
more concerning. In Ford, the court stressed that ‘‘the crime
which gave rise to Ford’s arrest warrant occurred months,
not minutes before the police arrived at his mother’s apart-
ment, and the seizures occurred after, not prior to or contem-
poraneous with Ford’s arrest.’’ 56 F.3d at 271. Here, by
contrast, the police were responding to a crime (the domestic
assault) in progress, and the officers’ arrival, Goree’s arrest,
and the seizure all took place contemporaneously. While
Ford ‘‘did not resist,’’ id. at 267, Goree did. In Ford there
were six officers present who ‘‘had secured all the persons in
the apartment’’ before the search began. Id. at 271; see id.
at 266. Here, there were only two officers on-scene at the
start of the search.9 Moreover, the government asserts that,
where the car door was closed and locked but the defendant had the
key).
9 Although the testimony was unclear as to whether two addition-
al officers (the sergeants) arrived before or after the gun was found,
12
unlike the other persons in the Ford apartment, id. at 270,
Lemons was not secured but rather was ‘‘moving freely about
the apartment.’’ Appellee’s Br. at 28–29.
Second, the scope of the incursion was more intrusive in
Ford than it was here. In Ford, the court objected neither to
the agent’s look into the adjacent bedroom, nor to the seizure
of contraband that he found there in plain view, but rather to
the agent’s upending of the mattress and trolling beneath the
shades. Here, by contrast, the district court found: ‘‘The
gun was not discovered under a mattress or behind a curtain.
The gun was not discovered in a drawer or in a pocketbook.
The gun was discovered out in plain view on top of a
refrigerator.’’ App. 237. See United States v. Lopez, 989
F.2d 24, 25–27 (1st Cir. 1993) (upholding search in adjacent
room because ‘‘the intrusion, although not minimal, was limit-
ed: the officer saw the opening in the bathroom ceiling
through an open door, entered the empty room, and with
little effort saw the butt of the weapon. There was no new
entry into a private residence; the police were lawfully in the
kitchen.’’). Indeed, to the extent that Officer Moon searched
an area beyond that which Goree concedes was permissible,
that search consisted of nothing more than a second look into
a room that he had already lawfully swept once pursuant to
Buie. In sum, on the facts that we have so far assumed,
Officer Moon’s search of the kitchen (and discovery of the
gun) was permissible under the exigent circumstances excep-
tion to the Fourth Amendment’s warrant requirement.
IV
This brings us to the remaining question: do the facts
support the scenario that we have just described and, as
described, validated? Goree presses two points that give us
some pause.10
there was no dispute that they had not arrived at the time the
search began. See Appellant’s Br. at 8; App. 102 (Maradiaga
testimony); id. at 210, 212–13 (Sergeant Caldwell testimony).
10Goree also presents a number of additional factual claims that
are readily dismissed. First, he challenges as clearly erroneous the
13
First, Goree disputes the extent of the claimed exigency,
contending that there is no support for the government’s
assertion, Appellee’s Br. at 28–29, that Lemons was ‘‘moving
freely about the apartment’’ during the search, and thus that
she posed a potential danger. The testimony upon which the
government bases its assertion is at best inconclusive: Officer
Maradiaga testified that Lemons was in the living room when
the search began, App. 100, and Sergeant Caldwell testified
that she was in the bedroom when he arrived, id. at 213. As
Goree points out, there was no testimony as to how Lemons
got from one place to the other and, particularly, whether the
police themselves moved her. As Goree also correctly notes,
the district court made no finding at all about Lemons’
location during the course of the search, let alone as to
whether she was ‘‘secured’’ or ‘‘moving freely about.’’ Put
simply, more facts relating to Lemons’ situation are required
in order to determine whether she posed a threat.
Second, Goree takes issue with the government’s descrip-
tion of the scope of the intrusion. As we said above, one
possible inference from the court’s finding that the gun
became immediately visible ‘‘upon [Officer Moon’s] entering
the room’’ is that the officer saw the weapon as soon as he
court’s finding that the gun was ‘‘discovered in plain view on top of
a refrigerator,’’ App. 237, because Maradiaga merely testified that
the gun was ‘‘located on top of the refrigerator,’’ id. at 102. Goree
contends that it is thus possible that the officer meant — although
he did not say — that the gun was covered by something. While
that may be possible, the court’s inference that the officer meant
that the gun was in plain sight is reasonable. Goree also disputes
that anyone could have seen a gun high atop a refrigerator. But
the court’s explanation for finding the officer’s testimony credible is
again reasonable: Moon was four inches taller than the refriger-
ator. Id. at 236–37; see id. at 206. Finally, Goree further chal-
lenges Maradiaga’s credibility by asking how, if the gun really was
in plain sight, the police could have failed to see it the first time
they looked in the room — during the Buie sweep for possible
confederates. In context, however, the answer to that question is
clear: unlike an officer searching for a gun, an officer looking for a
person is not likely to focus on the top of a refrigerator.
14
took a step or two into the kitchen. But the court did not say
that expressly, and neither did the testimony. All that
Maradiaga said was that Moon found the gun ‘‘on top of the
refrigerator,’’ App. 102; Moon did not himself testify. More-
over, although there was evidence that the apartment was
small and that the kitchen was ‘‘adjacent’’ to the dining room,
there were no findings or testimony regarding the details of
the apartment’s layout: we do not know how far it was from
the dining room table to the kitchen’s threshold or how far it
was from that threshold to the refrigerator. Nor do we know
whether the path to either location was direct or obstructed.
Nor — because we do not know how, or how well, Goree was
secured — can we determine how readily he could have
obtained a weapon located just a step or two into the kitchen.
In short, without further findings of fact on these issues,
which may require taking additional testimony, the record is
inadequate to establish whether sufficient potential danger
remained, even after Goree’s detention, to create an exigency
justifying the warrantless search. In such circumstances, a
remand for further proceedings is appropriate. See United
States v. Hutchinson, 268 F.3d 1117, 1118 (D.C. Cir. 2001)
(remanding because the district court failed to make ‘‘findings
of fact essential to decide [the] legal issue’’ of whether a
Terry stop was excessive); United States v. Williams, 951
F.2d 1287, 1291 (D.C. Cir. 1991) (remanding for factual find-
ings supporting district court’s denial of suppression motion);
see also FED. R. CRIM. P. 12(d) (providing that ‘‘[w]hen factual
issues are involved in deciding a motion, the court must state
its essential findings on the record’’); Murray v. United
States, 487 U.S. 533, 543–44 (1988) (remanding for more
explicit findings to resolve a suppression motion).11
11 We further note that, if on remand the district court were to
determine that the gun is inadmissible, it would then have to
determine whether Goree’s subsequent incriminating statements
regarding the magazine and gun are inadmissible as well. That, in
turn, would depend on whether Goree would have made those
statements if his encounter with the police had ended with his
concededly lawful arrest for possession of the magazine, but without
the discovery of the gun. See Wong Sun v. United States, 371 U.S.
15
V
For the foregoing reasons, the case is remanded for further
proceedings consistent with this opinion.
471, 486–88 (1963); James v. United States, 418 F.2d 1150, 1151–52
(D.C. Cir. 1969). Both Goree and the government agree that a
remand is required to resolve such factual issues.