Appeal from the United States District Court for the District of Columbia (No. 01cr00319–01)
Before: Edwards and Garland, Circuit Judges, and
Williams, Senior Circuit Judge.
The opinion of the court was delivered by: Garland, Circuit Judge
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.
Malachi Goree pled guilty to unlawful possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g), but reserved his right to appeal the denial of his motion to suppress incriminating evidence and statements. Because we do not have a sufficient factual record upon which to assess the constitutionality of the search that produced this evidence, we remand for further proceedings.
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 Apartment 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 representative 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 entered the apartment, grabbed Goree's hands, and handcuffed him.
As discussed below, the testimony at the suppression hearing concerning the apartment's layout lacks significant details. 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 proceeded 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, however, was not persuaded. He testified that he had had considerable 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. Although 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.
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.*fn1
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.*fn2 After losing the motion to suppress, Goree entered a ...