United States v. Dennis O. Miller , 449 F.2d 974 ( 1971 )

BAZELON, Chief Judge:

About 12:30 p. m. on November 14, 1967, a man walked into Burdette’s Wine & Liquors in the 5900 block of Georgia Avenue and asked for a fifth of Teachers Scotch. When the bottle was brought to him, he pulled a gun and demanded the money from the cash register; the money was given to him. He then took cash from the two owners of the store, Norman Goldberg and Benjamin Mon-fried, and from their employee, Leon Jones, and herded the three into a walk-in refrigerator. When they emerged a minute or so later, the Scotch and the robber were gone.

Goldberg called the police, and a lookout was broadcast over the police radio. Officer Alfred Innoeenti, patrolling on foot in the 5500 block of Georgia Avenue, first received a call that a robbery was “in progress” at Burdette’s. At that time he saw a moustachioed black man carrying a brown paper bag and running in a direction opposite to that in which the store lay. Innoeenti then received a description of the robber — a “Negro male, six feet, 175 pounds and about 30 years of age, wearing a dark coat, a dark small brim hat, with a moustache,” and carrying a whiskey bot-tie. Innocent radioed that he had a suspect in sight, and followed the man, who had by then slowed his pace to a walk. He lost sight of him briefly and inquired of a number of persons on the street, who directed him to the rear of 5503 Georgia Avenue. Innoeenti radioed for assistance, and he and two other officers entered the building. The proprietor of a tailor shop on the first floor told them that a man had just gone upstairs to the office of Dr. Roberts, a dentist. The officers knocked on the door of the office, identified themselves, and demanded entry. After an initial refusal, they were admitted by appellant, who was in his shirtsleeves and “breathing heavily.” A dark coat and hat lay on a couch near the door.

The record is less than luminously clear regarding subsequent events. It appears, however, that the officers’ first action upon entering the suite was to ask appellant where he had been for the past five minutes.¹ More policemen arrived. Some of the officers looked through the entire five-room office; they found a bottle of Teachers Scotch in a brown paper bag on a shelf.² At some point, the officers became aware that a young woman, later identified as appellant’s sister, was also in the offices. Leon Jones was brought to the suite and asked if he could identify appellant; he could not. Benjamin Mon-fried was then brought over and identified appellant as the robber; appellant was shortly thereafter taken to the police station. After his departure, his sister gave the police some $28.00 which, she said, her brother had given her. She also pointed out a drawer in Dr. Roberts’ own desk in which she said appellant had placed an “object” wrapped in rags. The police opened the drawer ³ and removed the “object,” a gun belonging to Dr. Roberts. They subsequently left the office.

Appellant was tried in May of 1968 on five counts of robbery, eight counts of assault with a deadly weapon, and one count of carrying a dangerous weapon, the charges arising out of the robbery of Burdette’s and two other robberies of liquor stores in the same area. Convicted on all counts, he was sentenced to concurrent terms of imprisonment, the longest being five to fifteen years. On this appeal, he presses numerous contentions relating to joinder of the offenses for trial, pre-trial identifications, and the scope of the search in Dr. Roberts’ office. For the reasons hereafter stated, we find that there was no error in the admission of the fruits of the search; that Monfried’s identification of appellant at Dr. Roberts’ office was not made in impermissibly suggestive circumstances ; that use of a second identification, even if tainted, was harmless beyond a reasonable doubt; and that failure to sever, if error, did not prejudice appellant on those counts arising out of the Burdette’s robbery. Consequently we affirm those convictions. Since the sentences are concurrent on all counts, we may therefore dispose of the remaining charges without reaching the points raised by appellant.

I.

We note at the outset that appellant does not question the authority of the police in the circumstances to enter Dr. Roberts’ offices in order to make the arrest. He argues instead that the bottle of Scotch and the gun, introduced into evidence against him, were the fruits of a search unlawfully broad in scope, and should therefore have been suppressed. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Appellant, however, has no standing to challenge the search that produced Dr. Roberts’ gun. “The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.” Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969). Of course, as a person lawfully on the premises, appellant has standing to challenge the officers’ entry into the suite itself. Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). But appellant’s own testimony establishes that he had no authority to open or use the drawer in which the gun was found, nor is there any suggestion that the gun itself belonged to him. Consequently, even if the search or seizure of the gun were unlawful, appellant has not established that “he himself was the victim of an invasion of privacy.” Jones v. United States, supra, at 261, 80 S.Ct. at 731.

Authorized to use the laboratory in which the bottle of whiskey was found, appellant has standing to challenge its introduction into evidence. We believe, however, that the action of the police in seizing the bottle was lawful. They had entered the suite of offices in hot pursuit of an armed and fleeing felon. Although the man they sought was in view from the moment the door was opened, they had no way of knowing who else might be on the premises. In those circumstances, the police could justifiably conduct a search of the suite to assure themselves that no hostile and possibly dangerous persons were hiding in the other rooms. Warden Md. Penitentiary v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).⁴ The bottle of whiskey itself was in plain view in the dentist’s laboratory,⁵ and there is no evidence in this record that the police engaged in any general search of the premises beyond that necessary to find any other persons who might have been in the suite.⁶ See Stanley v. Georgia, 394 U.S. 557, 570-572, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (opinion of Mr. Justice Stewart). Seizure of the bottle and its subsequent admission into evidence were therefore proper.

We do not believe that the doctrine of pursuit, as reflected above, is affected by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), assuming that case is applicable here,⁷ Chimel dealt with the extent to which the mere fact of an arrest authorized a search as incident thereto. But Warden, Md. Penitentiary v. Hayden, supra, makes clear that the present search is not properly characterized simply as incident to appellant’s arrest.⁸ Rather, it falls within one of the “few specifically established and well-delineated exceptions”⁹ to the requirement that judicial approval be obtained before police undertake a search. Consequently, the specific limitations established in Chimel¹⁰ are not applicable to the present situation, and we find nothing in the rationale underlying Chimel — that “[t]he scope of [a] search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible”¹¹ * — inconsistent with our decision today.

II.

Appellant was identified at trial by Benjamin Monfried and Norman Goldberg, co-owners of Burdette’s Wine & Liquors. Each had observed the robber for several minutes during the holdup.¹² Government counsel on direct examination brought out that Monfried, shortly after the robbery, was taken by police to Dr. Roberts’ office, where he identified appellant. Defense counsel elicited from Goldberg that he had previously identified appellant at his hearing before a United States Commissioner, a week after the offense.¹³ Appellant argues that both these pretrial confrontations were improper. We find no illegality in Mon-fried’s identification and affirm on that basis.

“The presentation of only one suspect, in the custody of the police, raises problems of suggestibility that bring us to the threshold of an issue of fairness.” Wise v. United States, 127 U.S.App.D.C. 279, 282, 383 F.2d 206, 209 (1967). Yet prompt identifications seem to be more reliable than stale ones; and by bringing a suspect before witnesses within moments of the crime, the police may be able to release an innocent man apprehended in error, and begin again the search for the perpetrator of the crime. See Simmons v. United States, 390 U.S. 377, 384-385, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). These considerations led us to conclude that notwithstanding United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the absence of counsel from an identification conducted immediately after the crime does not foreclose the government from use of that identification. Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969).¹⁴

Nor do we believe that “the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable misidentification” as to deprive appellant of due process of law. Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 694 (1967). For “absent special elements of unfairness, prompt on-the-seene confrontations do not entail due process violations.” Russell v. United States, 133 U.S.App.D.C. at 81, 408 F.2d at 1284. The only particular elements in this case upon which appellant premises his claim of unfairness are the presence of perhaps half a dozen police officers, and of appellant’s sister, characterized (in appellant’s brief) as having been at the time “hysterical.” Without pausing to examine the accuracy of this characterization, we are able to conclude that the present identification was not made in impermis-sibly suggestive circumstances. Mon-fried was originally able to observe the robber for several minutes in a well-lit store at noontime.¹⁵ Appellant when identified was in his shirtsleeves, whereas the robber had been wearing a coat, hat, and tie during the offense.¹⁶ and finally, before Monfried’s identification, a store employee had been brought by the police to Dr. Roberts’ office, and had been unable to identify appellant. Under these circumstances, and in light of all the evidence, we find no violation of due process.

We therefore need not consider the .applicability of United States v. York, 138 U.S.App.D.C. 197, 199, 426 F.2d 1191, 1193 (1969), and Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176 (1969), to Goldberg’s identification of appellant in the United States Commissioner’s hearing; nor do we decide whether, if that confrontation was improper, this record provides a sufficient basis for us to conclude that Goldberg’s in-court identification nevertheless was based on an independent source — that is, on his observation of the bandit during the holdup. We find, rather, that in the circumstances of this case, admission of Goldberg’s identification, even if error, was harmless beyond a reasonable doubt. Appellant was seen by a police officer walking away from the store shortly after the holdup. He was in view almost constantly from that time until he entered the dentist’s office. The officer, arriving there within minutes, recognized appellant as the man he had been following. A coat, hat, and gun were found in the offices; all matched the description of those used by the robber. A bottle of whiskey which had come from the robbed store was also found there. Finally, appellant was legitimately identified, within minutes of the crime, by one of the victims. We cannot imagine a different result if Goldberg’s testimony had been barred. Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

III.

Appellant’s final claims with respect to the robbery of Burdette’s relate to joinder and severance. Fed.R.Crim.P. 8, 14; see Bradley v. United States, 136 U.S.App.D.C. 339, 420 F.2d 181 (1969). Evidence that appellant had committed the two other robberies with which he was charged was, as the government admits, far weaker than that relating to the robbery of Burdette’s.¹⁷ Although there may be cases in which this point would not be dispositive, in the present case it is clear to us that no prejudice inhered with regard to the counts growing out of the robbery of Burdette’s. Accordingly, we affirm the convictions on these counts.¹⁸

Finally, appellant presents a raft of claims relating to his conviction on charges arising out of the other robberies. Although all of his sentences are to run concurrently, the validity of the concurrent sentence doctrine is presently in serious doubt. Benton v. Maryland, 385 U.S. 784, 787-793, especially 793, 89 S.Ct. 2056, 23 L.Ed.2d 707 n. 11 (1969). Were we to refuse to consider these claims, they might well be open on collateral attack on those convictions Street v. New York, 394 U.S. 576, 579-580, 89 S.Ct. 1354, 22 L.Ed.2d 572 n. 3 (1969); Carafas v. LaVallee, 391 U.S. 234, 237-238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Yet the government professes no interest in upholding appellant’s remaining convictions. Accordingly, we see no reason to burden either ourselves or the district court with complex litigation in the outcome of which only one party has a serious interest. United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413 (1943); California v. San Pablo & Tulare R.R., 149 U.S. 308, 13 S.Ct. 876, 37 L.Ed. 747 (1893); Hayburn’s Case, 2 Dall. (U.S.) 409, 1 L.Ed. 436 (1792). We therefore enter judgment of affirmance of the sentences and judgments entered on counts eight through fourteen of the indictment, and vacate the remainder. See Kee v. United States, 135 U.S.App.D.C. 249, 418 F.2d 465 (1969); cf. Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 81 L.Ed. 178 (1936).

So ordered.

1 . Appellant’s answer to the question was not related to the jury at trial.

2 . The bottle was later identified as having come from Burdette’s by the license stamp on its label.

3 . It is not clear whether or not the drawer was locked.

4 . The police did in fact turn up one other person in the suite, a young woman later identified as appellant’s sister.

5 . Although the record is not clear on this point, it may well be that the bottle was first seen from the waiting room into which the police initially entered.

6 . The officers did open Dr. Roberts’ desk drawer to seize the gun, but apparently did so only after they had been told by appellant’s sister that the gun was there. In any event, we have already concluded that appellant has no standing to challenge that portion of the search.

7 . In view of the disposition we reach here, we express no opinion regarding the retroactivity vel non of Chimel. Von Cleef v. New Jersey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728 (1969).

8 . The Court in Warden, Md. Penitentiary v. Hayden carefully distinguished the situation with which it was dealing from that in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), which like Chimel (by which it was overruled, 395 U.S. at 768, 89 S.Ct. 2034) dealt with the lawful scope of a search incident to an arrest. See Warden, Md. Penitentiary v. Hayden, 387 U.S. at 299, 87 S.Ct. 1642.

9 . Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), citing Warden, Md. Penitentiary v. Hayden as one of the exceptions. Id. n. 19. This portion of Katz was specifically reaffirmed in Chimel. 395 U.S. at 763 n. 8, 89 S.Ct. 2034.

10 . See 395 U.S. at 762-763, 89 S.Ct. 2034.

11 . Chimel v. California, supra, at 762, 89 S.Ct. at 2039; brackets and quotation marks have been omitted. The Court in Chimel was quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which quoted in turn from Mr. Justice Portas’ concurring opinion in Warden, Md. Penitentiary v. Hayden, supra, at 310, 87 S.Ct. 1642.

12 . Goldberg testified that he observed the robber closely because he resembled a man who had previously passed a rubber check in the store. Monfried, although certain of his identification, admitted that “I was looking more at the gun than I was at him.”

13 . Goldberg was seated among the spectators for some time and appears to have identified appellant when the latter entered the room. Goldberg was later called as a witness and then identified appellant from the witness stand.

14 . Our conclusion in Russell was based on "a general rule that it is not improper for the police immediately to return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before.” 133 U.S.App.D.C. at 81, 408 F.2d at 1284. We see no reason to reach a different conclusion where, as here, the witness is brought to the suspect. Cf. Jackson v. United States, 134 U.S.App.D.C. 18, 22-23, 412 F.2d 149, 153-154 (1969).

15 . Compare the more limited opportunities for observation in Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206 (1967), and Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969).

16 . The police had found in the dentist’s office a coat and hat matching the description of that worn by the robber. The point here is that, had they desired to force a positive identification of appellant, they presumably would have forced him to don these clothes. See Russell v. United States, 133 U.S.App.D.C. at 82, 408 F.2d at 1285:

Stovall v. Denno did not erect a due process barrier against all unreliable identifications; it requires exclusion only of evidence which could and should have been obtained by procedures less conducive to unreliability, [footnote omitted]

17 . The evidence in each of the other cases consisted of the alleged similarity in carrying out the robberies — in each case, the bandit had prefaced his demand for money with a request for good Scotch, which he carried away — and on the testimony of eyewitnesses, who identified appellant and some of whom described the gun and coat seized after the Burdette’s robbery as similar to that used in their robberies.

18 . Counts 8, 9, 10, 11, 12, 13, and 14 of the indictment.