Eugene Smith v. United States , 254 F.2d 751 ( 1958 )

BASTIAN, Circuit Judge.

This appeal is from a conviction under the narcotics laws.

The record discloses that on March 26, 1957, Lawrence 0. Hayden, a special employee of the Metropolitan Police Department, went to the premises 2105 Fifth Street, N. W., Washington, D. C., accompanied by members of the Narcotics Squad, to purchase narcotics. Under the observation of the police, and after he had been searched for money and narcotics,¹ the special employee went into the house, entering the rear door, saw appellant, and asked the latter to sell him drugs. After discussion as to quantity, appellant agreed to and did sell to the special employee three capsules of heroin, which appellant took out of a small “Bufferin’’ bottle. Hayden then left th* house. He gave the narcotics to the officers and informed them of what had transpired, describing appellant to them. No one had either entered or left the house while Hayden was in the premises.

Hayden was again searched and it was found that the marked five dollar bill which he had in his possession when he entered the house was no longer in his possession. A preliminary field test made by the officers of the three capsules purchased by the special employee showed the presence of narcotics.

The officers went to the rear door of the house, knocked on the door, and announced that they were police officers. When no one opened the door, they turned the knob and entered; they did not force their way in through the back door. The officers had no arrest or search warrant. No one had entered or left the premises between the time Hayden left the house and the time the officers entered. They immediately placed appellant and certain other occupants of the house under arrest. Appellant, at the time of the arrest, admitted to them the sale of the narcotics. Search of appellant and of the premises was then conducted. The search of appellant revealed the marked money and an empty “Bufferin’’ bottle; and, from an upstairs room, narcotics paraphernalia ² was seized.

Before trial appellant made a motion to suppress certain evidence allegedly illegally seized. The court granted the motion to suppress the marked five dollar bill found on appellant’s person, which was all that appellant had asked. Appellant denied ownership of the other items seized.

On the date set for trial and just before the jury was sworn, appellant orally moved, before the same judge who had disposed of the motion as to the five dollar bill, to suppress all statements and all evidence taken after the arrest and search. The trial court did not dispose of the motion at the time it was made but told counsel for appellant that he would “take care of that as we reach it.” The case proceeded to trial.

The attorney for the Government had the narcotics paraphernalia and the “Bufferin’’ bottle marked for identification only but, when they were offered in evidence, the court ordered them excluded and instructed the jury to disregard those items. Appellant claims as error the action of the trial court in allowing the Government to present such evidence even for identification purposes.

Appellant complains that the oral confession made by him after his arrest was inadmissible as having been made in the course of an illegal arrest and in the course of an allegedly unreasonable search and seizure.

As to the legality of the arrest, the rule is settled in this jurisdiction, as it is in many others, that a law officer may arrest without a warrant where a felony has been committed and there is probable cause to believe the arrested person committed it. See, e. g., Shettel v. United States, 1940, 72 App.D.C. 250, 113 F.2d 34. We realize, of course, that the fact that the premises are a residence requires stricter require-xnents of reasonableness.³ Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453. But a search incident to an arrest which is otherwise reasonable is not automatically rendered invalid by the fact that a dwelling place, as contrasted to business premises, is subjected to search. See Harris v. United States, 331 U.S. 145, 151, 67 S.Ct. 1098, 91 L.Ed. 1399.

Here the law officers had searched the special employee and found no narcotics before he went into the premises. They had given him marked money and, while under their observation, he went into and returned from the premises. Upon his return, the officers again searched the special employee and discovered the capsules and the absence of the marked money. A preliminary field test performed at that time on the capsules showed the presence of a narcotic drug. The special employee had informed the officers of the purchase of the capsules from appellant. The officers clearly had probable cause to arrest appellant.

The problem then is whether the officers had authority to proceed to the house and make the forthwith arrest; whether under the circumstances they were required to get a warrant; whether the search incident to the arrest was proper; and whether the statement of appellant made contemporaneously with the arrest was properly received in evidence.

The rule is well settled that an officer who arrests a person for a felony committed in his presence may search not only the person but also the place where he is discovered, and other places in the immediate vicinity which formed part of the scene of the crime. Here the seizure was practically contemporaneous with the arrest, the felony having been committed in the presence of the officers. The arrest was lawful, and immediately thereafter a search of the appellant was made and of the place where the sale took place. In our opinion both the arrest and the search were proper.

The case of Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, is closely akin to the present one. There Agnello, one Alba, and several others were indicted for conspiracy to violate the Harrison Act, 26 U.S.C.A. (I.R.C. 1954) § 4701 et seq., they being charged with conspiracy to sell cocaine without having registered with the Collector of Internal Revenue and without having paid the prescribed tax. The evidence introduced by the Government indicated that two persons employed by Government revenue agents for that purpose [as was Hayden here] went to the home of Alba and offered to buy narcotics from him and one Centorino. Alba gave them some samples; and it was arranged that the employees would come again on the Monday following, at which time they returned. Revenue officers and a city policeman followed them and remained on watch outside. Alba left the house and returned with Centorino. Centorino, followed by certain of the officers, went to his own house and thence to a grocery store belonging in part to Agnello, another part of which was Agnello’s home. In a short time Centorino and Agnello came out of the last mentioned place and went to Alba’s house. Looking through the windows, the officers saw Agnello produce a number of small packages for delivery to the employee of the revenue agents and saw the employee hand over money to Alba. Upon the apparent consummation of the sale, the officers rushed in and arrested all the defendants. Some of the packages were found on the table where the transaction had taken place and others were found in Agnello’s pockets, all containing cocaine. On searching Alba the officers found the money given to him by the agent. While certain of the revenue officers were taking the defendants to the police station, the others went to Agnello’s home and, in his bedroom, found a can of cocaine, which was offered in evidence. Admission was denied. However, when Agnello, on the witness stand, denied that he had ever seen the narcotics, the Government was permitted to put in evidence the can of cocaine seized in his home. The court also permitted to be received in evidence the articles obtained in Alba’s home as incident to the arrest. The Supreme Court reversed the case as to Agnello because the search of Agnello’s premises was not incident to the arrest, but affirmed as to Alba and others. In its opinion the Supreme Court said:

“The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted. *' * * The legality of the arrests or of the searches and seizures made at the home of Alba is not questioned. Such searches and seizures naturally and usually appertain to and attend such arrests. But the right does not extend to other places. Frank Ag-nello’s house was several blocks distant from Alba’s house, where the arrest was made. When it was entered and searched, the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests.” Id. 269 U.S. at pages 30-31, 46 S.Ct. at page 5.

The Court pointed out further: “While the question has never been directly decided by this court, it has always been assumed that one’s house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein.” (Emphasis supplied.)

It seems to us that the Agnello case fits the instant case perfectly. Here the arrest was legal and the search was an incident to the lawful arrest.

See also Nueslein, infra, where this court said [73 App.D.C. 85, 115 F.2d 696] : “That is why the rule has grown up that in felony cases officers may enter a suspect’s home upon probable cause to arrest him, and then conduct a search incidental to the arrest.”

The authoritative answer is also found in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. We should note that in the instant case the officers believed that by the time they could get a search warrant there would be no narcotics in the premises. But, assuming that the officers had time to procure an arrest or a search warrant, were they bound to do so in this particular case? We think not. We are bound by this language in Rabinowitz:

“A rule of thumb requiring that a search warrant always be procured whenever practicable may be appealing from the vantage point of easy administration. But we cannot agree that this requirement should be crystallized into a sine qua non to the reasonableness of a search. It is fallacious to judge events retrospectively and thus to determine, considering the time element alone, that there was time to procure a search warrant. Whether there was time may well be dependent upon considerations other than the ticking off of minutes or hours. The judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential.

“It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the officers to procure one. The. mandate of the Fourth Amendment is that the people shall be secure against unreason^ able searches. It is not disputed that there may be reasonable searches, incident to an arrest, without a search warrant. Upon acceptance of this established rule that some authority to search follows from lawfully taking the person into custody, it becomes apparent that such searches turn upon the reasonableness under all the circumstances and not upon the practicability of procuring a search warrant, for the warrant is not required. To the extent that Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances — the total atmosphere of the case. It is a sufficient precaution that law officers must justify their conduct before courts which have always been, and must be, jealous of the individual’s right of privacy within the broad sweep of the Fourth Amendment.” Id., 339 U.S. at pages 65-66, 70 S.Ct. at page 435.

Only unreasonable search and seizure is proscribed by the Fourth Amendment and there is no exact formula for determining reasonableness; each case depends on its own facts and circumstances. In the absence of a warrant an officer must show probable cause. Was there here reasonable ground of suspicion supported by sufficiently strong circumstances to warrant a cautious man’s belief that appellant was guilty of a violation of the narcotics laws? We think no reasonable man can doubt that probable cause did exist.

Appellant relies on Nueslein v. District of Columbia, 1940, 73 App.D.C. 85, 115 F.2d 690, but that case is of no help to appellant. In Nueslein, the law officers, in pursuance of a general investigation of an automobile accident, entered the home of the defendant without “color of right,” as the court expressed it. A taxicab had struck a parked car; and, in an unoccupied cab, parked some distance from the scene of the accident, the police saw the registration card and character license of the cab owner. They went to the owner’s house, knocked on the door, and received no reply. Then, without a search or arrest warrant, they either opened the door or passed through the door already open and entered the house. After some time, the owner of the taxicab came downstairs and stated that he was driving the cab at the time of the accident. He appeared to be under the influence of liquor. Thereupon, he was placed under arrest and later convicted of driving an automobile while under the influence of liquor. The court said:

“The officers, in the pursuance of a general investigation, entered the home under no color of right. They did not know that the defendant was driving the car; they did not know that any offense had been committed. If they had gone after a search warrant what would have been the crime charged, what evidence would have been detailed as pertinent? The absence of a search warrant could scarcely make good an entry £or which no warrant could have been obtained. Even if a warrant could have been made out, it is still unreasonable to enter a home without one where only a misdemeanor not committed in the presence of officers could have been charged. When the officers entered they were just investigating. They were still illegally investigating when the defendant told them that he was driving the cab at the time of the accident. The officers looking him over adjudged him to be drunk, and then, and not until then, two and two equaled a drunken driving charge— a charge which can be made without an accident, the only starting point for this investigation. Then the officers took the defendant into custody, again violating his security.” 73 App.D.C. at pages 88-89, 115 F.2d at pages 693-694.

The court stated further:

“While the IVth Amendment applies to the innocent, the misde-meanants, and the felons, what is an unreasonable search depends upon the nature and importance of the crime suspected, if any. That is why the rule has grown up that in felony cases officers may enter a suspect’s home upon probable cause to arrest him, and then conduct a search incidental to the arrest. This defendant may have driven a taxi while under the influence of an alcoholic beverage; at least for some reason he wrinkled the fender of an unoccupied parked car, but the public interest in this case does not call for the rough and speedy conduct of officers tracking down a felon. At most, the officers could have guessed that the defendant committed some misdemeanor.” 73 App.D.C. at page 91, 115 F.2d at page 696.

The differences between the facts in Nueslein and the instant case are apparent. In Nueslein there was no probable cause for an arrest of Nueslein up to the time the search was made. Moreover, only a misdemeanor was involved. Here a felony was involved, and probable cause existed to believe that the felony had been committed and that Smith had committed it. The present case is not one where a search is attempted to be made legal by what it turns up. See United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210.

Appellant also relies on McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. That case obviously has no relation to the case here. There the question involved was illegal detention, flagrant disregard of Acts of Congress requiring that accused persons arrested by federal officers be taken forthwith before a proper judicial officer for hearing, commitment or taking bail for trial. No such claim may be made here. The inculpatory statement was made immediately on the arrest and there was no illegal detention, such as was present in McNabb.

It is significant that § 2236 of Title 18, U.S.C. (1952), provides as follows:

“Searches without warrant. Whoever, being an officer, agent, or employee of the United States or any department or agency thereof, engaged in the enforcement of any law of the United States, searches any private dwelling used and occupied as such dwelling without a warrant directing such search, or maliciously and without reasonable cause searches any other building or property without a search warrant, shall be fined for a first offense not more than $1,000; and, for a subsequent offense, shall be fined not more than $1,000 or imprisoned not more than one year, or both.

“This section shall not apply to any person—

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“(b) arresting or attempting to arrest a person committing or attempting to commit an offense in his presence, or who has committed or is suspected on reasonable grounds of having committed a felony; * * ”.

Also, § 4-140, D.C.Code 1951, provides:

“Arrests without warrant. The several members of the police force shall have power and authority to immediately arrest, without warrant, and to take into custody any person who shall commit, or threaten or attempt to commit, in the presence of such member, or within his view, any breach of the peace or offense directly prohibited by Act of Congress, or by any law or ordinance in force in the District, but such member of the police force shall immediately, and without delay, upon such arrest, convey in person such offender before the proper court, that he may be dealt with according to law.”

It would be a travesty if, a felony having been committed under the very eyes of an officer of the law, the officer had to wait until an arrest warrant could be obtained and thus, perhaps, allow the felon to get away. Must a law officer stand helplessly by while the person who has committed a felony in the officer’s very presence walks away in comparative safety, thereby perhaps escaping the just punishment for his crime? And, if such a person is arrested, is a contemporaneous inculpatory statement to be excluded? Certainly, unless the enforcement of the criminal law is to be hamstrung, such an arrest is proper and a contemporaneous inculpatory statement, freely and voluntarily given, should be received in evidence.

We believe the rule to be that confessions made while a defendant is under arrest are admissible in evidence if voluntarily made and if Rule 5, Federal Rules of Criminal Procedure, 18 U.S.C.A., is not violated, whether the arrest was legal or illegal. See Gibson v. United States, 1945, 80 U.S.App.D.C. 81, 84, 149 F.2d 381, 384, where we said:

“The marihuana obtained by the officers from the Providence Street house was the basis of the second count of the indictment against O’Kelley, and his statements to the officers following his arrest and his other statement the next day were, as he admitted, entirely voluntary, and though when the first statement was made he was under an illegal arrest, we think that fact does not require the rejection of evidence volunteered by him for reasons sufficient to himself and made without force or compulsion or promise of reward.”

In the case of United States v. Walker, 2 Cir., 1952, 197 F.2d 287, 289, certiorari denied 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679, the court stated:

“The other item of evidence to the use of which the appellant objects is his confession. This was a voluntary confession. The fact that it was made while he was under illegal arrest does not make it incompetent. The rule of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, upon which the appellant relies is inapplicable to the case at bar.”

This rule has been followed in a number of state cases.⁴

Morton v. United States, 1945, 79 U.S.App.D.C. 329, 147 F.2d 28, certiorari denied 324 U.S. 875, 65 S.Ct. 1015, 89 L.Ed. 1428, was an appeal from a conviction of second degree murder. The decedent was last seen with the appellant on a Saturday afternoon. Appellant was. seen by a liquor dealer at nine o’clock the-same night with blood on his clothing, and again at eleven o’clock that night, with blood on his face and clothing. Decedent’s badly beaten and nearly nude-body was found the next morning in Rock Creek Park. Near the body a broken whisky bottle was found which was. identical with and bore the same stamp-number as the one that appellant had purchased from a liquor dealer who identified the appellant to the police before-appellant was arrested. The police went to appellant’s room without a warrant and placed him under arrest. Appellant testified that he did not permit the officer to search his room. Bloodstained clothing was taken 'from a closet, and a partly filled bottle of whisky and a newspaper were taken from a table in appellant’s room. He admitted being with the decedent in the Park and that he had slapped her, but he denied killing her. The court held the admission of this evidence was proper.

In Brinegar v. United States, 10 Cir., 1947, 165 F.2d 512, 515, affirmed, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, the court said:

“ ‘The mere questioning of a suspect while in the custody of police officers is not prohibited either as a matter of common law or due process.’ [Quoting from Lyons v. Oklahoma, 322 U.S. 596, 601, 64 S.Ct. 1208, 1212, 88 L.Ed. 1481.] Neither will the fact that the arrest, under which the person was taken into custody, was illegal, in and of itself render a confession or an incriminating statement involuntary. The test is whether, under all the facts and circumstances, the confession or incriminating statement was voluntarily made.”

We believe that neither the arrest nor subsequent search was illegal; but, without the necessity of holding that the arrest and search were proper, we believe that the admission of the inculpatory statement was proper, and that no reason exists for the reversal of the conviction on this account.

The search incidental to the arrest revealed various articles and money which formed a part of the arrest. We believe the District Court was in error in suppressing the marked five dollar bill and the other articles, and would have been well advised to have denied the motion to suppress under the circumstances of this case. That the court did not admit the articles and money certainly did not react to appellant’s disadvantage. In fact, he was given greater consideration than, in our opinion, he need have been given.

But even if the arrest and search were illegal — which we hold they were not — there was no error, as claimed by appellant, in the action of the trial court in allowing the Government to have marked for identification the articles which the trial judge declined to receive in evidence. Until the case was ready for trial no request had been made to suppress the bottle or narcotics paraphernalia. At the trial the court advised appellant’s counsel that although one motion had been made already, and it did not include these items, he would pass on their admissibility as the matter was reached in the trial. Adequate opportunity to move to suppress had been given prior to trial. No other way to obtain a ruling as to the admissibility of these additional items was open except to have them marked for identification and thereafter offered in evidence. This was done and they were excluded. No objection was made at the trial, nor was there any request that these items be kept out of the jury’s sight. The trial judge instructed the jury that they were to disregard the items. Even if the items should have been suppressed, no error was committed.

We have examined the remaining assignment of error — that appellant was denied a speedy trial — and find no merit in this claim.

Affirmed.

1 . No narcotics were in Hayden’s possession. He had, among other money, a marked five dollar bill given him by the officers.

2 . A hypodermic needle, syringe and a stocking tourniquet.

3 . It is to be noted that there was no evidence at the trial that the premises entered were those of appellant. The premises entered were 2105 Fifth Street, N. W., Washington, D. C. At the hearing of the motion to suppress (appellant did not take the stand at the trial) appellant testified that he lived at 1332 Vermont Avenue, N. W., Washington, D. C.; that a friend, who owned the premises 2105 Fifth Street, N. AV., had instructed him to take care of that house and the furniture while he was in Philadelphia; and that appellant occupied a bedroom in 2105 during the time the owner was away.

4 . See, e. g., Ivey v. State, 4 Ga.App. 828, 62 S.E. 565; Hicks v. State, 213 Ind. 277, 11 N.E.2d 171, 12 N.E.2d 501; People v. Klyczek, 307 Ill. 150, 138 N.E. 275; State v. Westcott, 130 Iowa 1, 104 N.W. 341; State v. Raftery, 252 Mo. 72, 158 S.W. 585; Hendrickson v. State, 93 Okl.Cr. 379, 229 P.2d 196; Balbo v. People, 80 N.Y. 484.