RON B. CROSSFIELD, PETITIONER V. UNITED STATES OF AMERICA No. 90-6803 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-15) is unreported, but the judgment is noted at 904 F.2d 78 (Table). JURISDICTION The judgment of the court of appeals was entered on June 11, 1990. A petition for rehearing was denied on October 17, 1990. The petition for a writ of certiorari was filed on January 14, 1991. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's responses to questions asked by a police officer as part of a routine booking procedure should have been suppressed because petitioner had not been given Miranda warnings. 2. Whether exigent circumstances justified a police officer's failure to announce his purpose before breaking down the door of petitioner's rooming house to execute a search warrant. 3. Whether the search warrant was invalid because it failed to specify particular rooms in the house to be searched. 4. Whether the district court's questioning of witnesses at petitioner's trial improperly favored the prosecution. 5. Whether the district court's failure to instruct the jurors that they must agree unanimously on which drugs and weapons petitioner possessed was plain error. 6. Whether the district court properly admitted evidence regarding the contents of documents found at the site of the arrest. 7. Whether the district court properly admitted expert testimony about the functioning of "safe houses" in drug operations. STATEMENT Following a jury trial in the United States District Court for the District of Columbia, petitioner was convicted of possession with intent to distribute cocaine, cocaine base, and marijuana, in violation of 21 U.S.C. 841(a)(1), and use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c). He was sentenced to 15 years' imprisonment. The court of appeals affirmed. Pet. App. 1-15. 1. The evidence at trial showed that petitioner participated in a drug distribution operation conducted out of a rooming house in the District of Columbia. Petitioner was arrested on March 7, 1988, when District of Columbia police officers executed a search warrant at the house. As a group of officers led by Sergeant Donald Exum approached the front door of the house, another officer advised them that they had been seen by a lookout posted inside the building. After Sergeant Exum knocked on the door and shouted "police" in a loud voice, the officers heard running footsteps inside the house. At the same time, Officer Nancy Brown, who was stationed at the rear of the house, radioed to the other officers that people were coming out of the back of the house. Sergeant Exum then broke down the front door of the house with a battering ram. The officers found large quantities of drugs, drug manufacturing and distribution paraphernalia, and loaded weapons throughout the house. Gov't C.A. Br. 2-4, 7-12. Eight men, including petitioner, were discovered inside the house. After the men were arrested and handcuffed, Officer Brown asked each arrestee his name, address, date of birth, social security number, height, and weight. In response to Officer Brown's questions, petitioner gave a District of Columbia address and then stated that he had just rented a room on the third floor of the house where the arrests took place. Gov't C.A. Br. 4. 2. The court of appeals affirmed. Pet. App. 1-15. Petitioner raised a number of claims in the court of appeals. First, he argued that evidence seized during the search of the rooming house should have been suppressed because the warrant authorizing the search failed to specify the particular rooms in the house to be searched. The court of appeals noted that there was "no evidence whatsoever to suggest that the police should have known at the time the warrant was requested that the house was a rooming house rather than a single-family dwelling" and that nothing in the record indicated that the officers should have concluded, once they entered the house, that "each bedroom constituted a separate boarding unit." Pet. App. 4-5. Citing this Court's decision in Maryland v. Garrison, 480 U.S. 79 (1980), the court concluded that evidence seized during the search of the house need not be suppressed. Pet. App. 4-5. Petitioner also contended that the search was illegal because the officers who executed the warrant failed to comply with the "knock and announce" provision of D.C. Code 33-565(g), which requires the police to give notice of their authority and purpose before breaking down a door to execute a warrant. /1/ The court concluded that the "considerable commotion" Sergeant Exum heard inside the house after he knocked on the door and shouted "police," coupled with the report that people were coming out the back of the house, "constituted exigent circumstances which relieved him from the requirement of announcing his purpose." Pet. App. 5-6. The court also rejected petitioner's claim that his answers to Officer Brown's questions should have been suppressed because they were given prior to his having received Miranda warnings. The court ruled that the challenged statements fell within an exception to the Miranda requirements for responses to "routine booking questions." Pet. App. 6. The court observed that Officer Brown's questioning was a "clerical procedure * * * intended primarily for record keeping" and that her "questions were of a type ordinarily innocent of any investigative purpose." It concluded that the Miranda requirements did not apply to such questions, even though they might sometimes elicit incriminating information. Pet. App. 6-7. Petitioner objected to the district court's admission into evidence of a report prepared by a police officer that summarized documents the officers found in the rooming house during the search. The court of appeals noted that the officer who prepared the report, Sergeant Hickey, was not involved in the investigation of the case against petitioner, and that the report "merely describe(d) documents that were independently introduced into the record." Pet. App. 7-8. Moreover, the report was first brought to the trial court's attention by counsel for one of petitioner's co-defendants, who called Sergeant Hickey as a witness and examined him extensively concerning the contents of the report. Under these circumstances, the court of appeals held, the district court did not err in allowing the government to introduce the report into evidence. Alternatively, the court concluded that because there was "extensive independent evidence of the items and opinions represented in the report," any error in the admission of the report was harmless. Pet. App. 8. Petitioner also challenged the district court's instructions to the jury, arguing that the jurors should have been instructed that they had to agree unanimously on which of the drugs and guns found in the rooming house each defendant possessed. The court of appeals concluded that petitioner had waived his right to appeal the denial of the proposed unanimity instruction by failing to object at the time the jury charge was given, and that the district court's failure to give a special unanimity instruction did not constitute plain error. Pet. App. 14-15. Finally, petitioner claimed that the district court improperly attempted to assist the prosecution at his trial by interjecting itself into the questioning of witnesses. After reviewing the record, the court of appeals found this claim to be meritless, stating that "we are convinced that the judge did not assume the role of advocate for the prosecution or tilt the trial toward the prosecution." Pet. App. 15. /2/ ARGUMENT 1. Petitioner renews his contention (Pet. 8-12) that his responses to Officer Brown's booking questions should have been suppressed because he had not been given Miranda warnings. The court of appeals' ruling that petitioner's statement fell within a "routine booking question" exception to the Miranda requirements is consistent with this Court's decision in Pennsylvania v. Muniz, 110 S. Ct. 2638 (1990). In Muniz, a suspect who had been arrested for driving while intoxicated was asked a series of questions concerning his name, address, height, weight, eye color, date of birth, and current age. Id. at 2642. The plurality concluded that these questions constituted custodial interrogation, but that the suspect's answers were nonetheless admissible under a "'routine booking question' exception that exempts from Miranda's coverage questions to secure the 'biographical data necessary to complete booking or pretrial services.'" Id. at 2650 (citations omitted). /3/ The plurality cautioned, however, that "'(w)ithout obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.'" Id. at 2650 n.14 (citation omitted). Here, the court of appeals found that Officer Brown's questions were asked as part of a routine booking procedure that was "predominately clerical" and "intended primarily for record keeping." Pet. App. 6. Cf. Muniz, 110 S. Ct. at 2650 (answers to booking questions were "requested for record-keeping purposes only" and appeared "reasonably related to the police's administrative concerns"). Because Officer Brown's inquiries were not "designed to elicit incriminatory admissions," the court of appeals correctly held that petitioner's responses to those inquiries need not be suppressed. Petitioner asserts (Pet. 8-9) that the court of appeals' decision conflicts with decisions of other courts of appeals suggesting that responses to booking questions are inadmissible in the absence of Miranda warnings when the police know or should know that those questions are reasonably likely to elicit an incriminating response. See United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983); United States v. Avery, 717 F.2d 1020, 1024-1025 (6th Cir. 1983). The short answer to that claim is that questions of the sort asked in this case -- name, address, and physical characteristics -- are not the sort that would ordinarily be expected to elicit an incriminating response. The decision in this case therefore does not conflict with the standard adopted with respect to "booking questions" in any other circuit. Moreover, any disagreement among the circuits as to the proper application of the "booking exception" to the Miranda rule may well have been resolved by this Court's decision in Muniz. In that case, the Court upheld the admission of statements made in the course of a booking procedure, and the plurality endorsed a "booking exception" similar to the one applied by the court of appeals in this case. We are aware of no subsequent decision in any court of appeals refusing to apply the "booking exception" as the court of appeals applied it in this case. In light of the analysis in Muniz, it therefore may be unnecessary for this Court to revisit the question of the validity or proper application of the booking exception to the Miranda rule. 2. Petitioner argues (Pet. 13-15) that the officers who executed the search warrant at the rooming house failed to comply with the "knock and announce" provision of 18 U.S.C. 3109, which requires a police officer to give "notice of his authority and purpose" before breaking down a door to execute a warrant. /4/ It is well established, however, that compliance with the requirements of Section 3109 may be excused by exigent circumstances, including the risk of danger to the entering officers and the possibility that suspects will attempt to escape or to destroy evidence. See, e.g., United States v. Nabors, 901 F.2d 1351, 1354 (6th Cir.), cert. denied, 111 S. Ct. 192 (1990); United States v. Bonner, 874 F.2d 822, 826-827 (D.C. Cir. 1989); United States v. Soinelli, 848 F.2d 26, 28 (2d Cir. 1988); United States v. Ramirez, 770 F.2d 1458, 1460-1461 (9th Cir. 1985); United States v. Garcia, 741 F.2d 363, 366-367 (11th Cir. 1984); cf. Sabbath v. United States, 391 U.S. 585, 591 n.8 (1968) ("there is little reason" to doubt that exceptions to constitutional limits on entering a dwelling also apply to requirements of Section 3109). The court of appeals correctly concluded that Sergeant Exum's failure to announce his purpose before entering the rooming house was justified by exigent circumstances. As the officers approached the house to execute the warrant, they were alerted that a lookout posted inside the building had seen them. When Sergeant Exum knocked on the door and shouted "police," the officers heard running footsteps inside the house /5/ and were immediately advised by another officer that people were leaving the back of the house. Under these circumstances, the officers were justified in entering the house without further delay. 3. Petitioner also contends (Pet. 20-22) that the search warrant was defective because it failed to specify the particular rooms in the house to be searched. /6/ The court of appeals properly relied on the decision in Maryland v. Garrison, 480 U.S. 79 (1987), in rejecting this claim. In Garrison, police officers obtained a warrant to search the "third floor apartment" of a building. There were actually two separate apartments on the third floor, a fact that did not become apparent to the police until after they had searched both apartments. Id. at 80. This Court upheld the search, holding that the constitutionality of the officers' conduct must be judged "in light of the information available to them at the time they acted." Id. at 85. Because the police reasonably believed when they obtained the warrant that the third floor contained only one apartment, the Court concluded that the warrant was valid. Id. at 85-86. Moreover, the officers' failure to discover their mistake until after they had searched both apartments was also "objectively understandable and reasonable," and therefore the search of the entire third floor was constitutionally permissible. Id. at 86-88. In this case, the court of appeals concluded that the officers who obtained the warrant to search the rooming house did not know and had no reason to know that the house was anything other than a single-family dwelling. Moreover, the court found nothing in the record to suggest that the officers who conducted the search should have realized that each bedroom was rented separately. Just as in Garrison, the conduct of the police in this case was reasonable "in light of the information available to them at the time they acted." 480 U.S. at 85. The court of appeals therefore properly upheld the search of the entire house. 4. Petitioner contends (Pet. 16-19) that the district court's involvement in questioning of witnesses "tilted" the trial in favor of the prosecution. This factbound claim was properly rejected by the court of appeals. A federal trial judge is more than a "mere moderator," see Herron v. Southern Pacific Co., 283 U.S. 91, 95 (1931), and may actively participate in the examination of witnesses in order to clarify testimony for the jury and ensure the orderly presentation of evidence. See United States v. Bejasa, 904 F.2d 137, 141 (2d Cir.), cert. denied, 111 S. C. 299 (1990); United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988), cert. denied, 109 S. Ct. 3215 (1989). Here, the court of appeals found, after reviewing the entire record, that the district court's questioning of witnesses was proper. /7/ 5. Petitioner next claims (Pet. 23-27) that he was denied his right to a unanimous verdict because the jurors were not instructed that they must agree on which particular items of contraband he possessed. Because petitioner did not object to the district court's failure to give a special unanimity instruction at the time the jury charge was given, the plain error standard applies. See Fed. R. Crim. P. 52(b). The plain error rule can be used "to correct only 'particularly egregious errors,' those errors that 'seriously affect the fairness, integrity or public reputation of judicial proceedings'" and that "ha(ve) an unfair prejudicial impact on the jury's deliberations." United States v. Young, 470 U.S. 1, 15, 17 n.14 (1985). Petitioner asserts (Pet. 27) that he suffered prejudice because individual jurors might have found him guilty of possessing different drugs and weapons. This was not a case, however, in which a single count encompassed more than one incident. To the contrary, at trial both the government and petitioner treated the illegal activities in the rooming house as indivisible. The government contended that the entire house was being used for a single drug operation, in which petitioner and his co-defendants participated, /8/ while petitioner argued that the evidence showed only that he happened to be present during the search of the house. In these circumstances, the district court's failure to give a special unanimity instruction was not error at all, much less plain error. /9/ 6. Petitioner contends (Pet. 28-30) that the district court erroneously admitted a report prepared by a police officer that summarized documents seized during the search of the rooming house. He asserts that Rule 803(8) of the Federal Rules of Evidence, which sets forth an exception to the hearsay rule for public records, /10/ implies that such reports are inadmissible when offered by the prosecution in a criminal trial. In this case, however, the report was originally relied on by counsel for one of petitioner's co-defendants. The defense attorney questioned the officer who prepared the report extensively about its contents, suggesting that the police had fabricated evidence that implicated his client. Under these circumstances, the district court's decision to admit the entire report was proper. Cf. Fed. R. Evid. 106 (when part of a writing is introduced by a party, adverse party may require introduction of any other part of writing "which ought in fairness to be considered contemporaneously with it"). In any event, because the seized documents were themselves introduced into evidence, the court of appeals correctly concluded that any error in the admission of the report, which merely summarized the contents of those documents, was harmless. See United States v. Bohrer, 807 F.2d 159, 163 (10th Cir. 1986); United States v. Wright-Barker, 784 F.2d 161, 174 (3d Cir. 1986). 7. Finally, petitioner contends (Pet. 31-32) that the district court erred in allowing the government to introduce expert testimony concerning the use of "safe houses" in illegal drug operations. Petitioner asserts that the admission of this testimony violated Federal Rule of Evidence 704(b), which forbids an "expert witness testifying with respect to the mental state or condition of a defendant in a criminal case" from offering an "opinion or inference" as to whether the defendant had the requisite mental state for the charged offense. Because this issue was neither raised in nor considered by the courts below, it may not now properly be raised for review. See United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977); Lawn v. United States, 355 U.S. 339, 362 n.16 (1958). In any case, petitioner's claim is meritless. The expert witness was not testifying about petitioner's "mental state or condition," and therefore Rule 704(b) has no application. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /11/ ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney MARCH 1991 /1/ Section 33-565(g) provides that "(t)he 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." /2/ The court also rejected petitioner's challenge to the sufficiency of the evidence to support his convictions, holding that the jury could reasonably have concluded that petitioner was a participant in the drug operation being conducted out of the rooming house and that he had constructive possession of the drugs and weapons found during the search of the house. Pet. App. 9-11. /3/ In a separate opinion, the Chief Justice, joined by three other Justices, concurred in the result. The concurring Justices concluded that the suspect's responses to the booking questions were not testimonial and therefore found it unnecessary to consider the applicability of the "booking question" exception recognized by the plurality. 110 S. Ct. at 2654. /4/ The requirements of 18 U.S.C. 3109 are virtually identical to those of D.C. Code 33-565(g), on which petitioner relied in the court of appeals. #FN5 /5/ There is no support for petitioner's suggestion (Pet. 14-15) that the sounds the officers heard inside the house might have been made by other officers who had entered the house through the rear door. The court of appeals stated that "the record as a whole clearly establishes that the police did not enter the rear of the house prior to or even simultaneous with the breaking down of the front door" and that the "commotion" the officers heard from inside the house "was not the sound of other policemen." Pet. App. 5-6. /6/ Petitioner does not assert that the police lacked probable cause to search the entire house. As the court of appeals observed, the search disclosed "drugs, powerful weapons, and drug distribution paraphernalia * * * strewn all about the house in virtually every room and common area." Pet. App. 9. /7/ In any event, any possible prejudice was cured by the district court's instruction to the jurors that they were not to conclude anything from the court's words or actions during the trial. See United States v. Gurary, 860 F.2d 521, 527 (2d Cir. 1988), cert. denied, 490 U.S. 1035 (1989); United States v. Williams, 809 F.2d 1072, 1088 (5th Cir.), cert. denied, 484 U.S. 896, 913, 987 (1987). /8/ Petitioner also claims (Pet. 24-26) that, as a result of the government's "lumping" of the defendants, he was "in effect tried on uncharged conspiracy offenses," in contravention of this Court's decision in Cole v. Arkansas, 333 U.S. 196 (1948). That claim is without merit. In Cole, the Court held that defendants who were convicted of violating one statute, but whose convictions were later affirmed when the appellate court determined that they had violated a second statute, had been denied due process. Id. at 200-202. Nothing of the kind occurred in this case. Here, petitioner was charged with and convicted of possessing cocaine, cocaine base, and marijuana with intent to distribute those drugs, and of using a firearm during and in relation to a drug trafficking crime. The court of appeals ruled (Pet. App. 9-11) that the evidence was sufficient to support petitioner's convictions on those charges, and petitioner does not challenge that ruling here. /9/ The petition should not be held pending the Court's decision in Schad v. Arizona, No. 90-5551 (argued Feb. 27, 1991). The question in Schad is whether, when a criminal statute defines a single offense that may be committed in a number of ways, the jury must unanimously agree on the means used by the defendant before it can convict. Thus, the first degree murder statute at issue in Schad encompassed both premeditated murder and felony murder. In contrast, neither of the statutes that petitioner was convicted of violating provides alternative means of committing the offenses with which he was charged. /10/ Rule 803(8) permits the admission of (r)ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth * * * matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or * * * in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. /11/ The Solicitor General is disqualified in this case.