Hawkins v. United States

KERN, Associate Judge,

concurring:

The record persuades me to reach two conclusions: (1) that the trial court committed constitutional error in refusing to suppress as evidence photographs the police took depicting various items in appellant’s apartment which they had entered without his consent, but (2) that such error under all the circumstances was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The trial court denied appellant’s pretrial motion to suppress the photographs of the interior of appellant’s apartment on the ground that there was no testimony at the suppression hearing that the police ever had made a search and seizure. However, the record reflects that the officers entered appellant’s apartment when he was not present and without obtaining consent from anyone authorized to act on his behalf and proceeded to photograph its interior. At trial, the prosecutor moved the photographs into evidence; he also used them in his examination of the two key government witnesses to buttress their testimony that they had entered appellant’s apartment and discovered various items of personal property belonging to the complainant which had been recently taken from his apartment in the same building.

At the time police entered appellant’s apartment and commenced photographing its interior appellant was not there, so their entry and subsequent photography could not be justified on grounds of being incidental to arrest or justified by exigent circumstances. Nor was their entry into the apartment and discovery of the articles “inadvertent” so as to trigger the so-called plain view exception to the warrant requirement for a search and seizure.¹ Finally, I am not persuaded that we can avoid the problem posed by asserting the acts of entering and photographing did not amount to a search and seizure. In United States v. Boswell, D.C.App., 347 A.2d 270, 273 (1975), we concluded that when the police removed a blanket covering an object which turned out to be a television set and then wrote down its serial number, this constituted a search and seizure. Similarly, it seems to me, when the police unlawfully enter an apartment and then record with a camera its contents they have engaged in a search and seizure.

Nevertheless, when all the circumstances of the case are considered in determining the harmless vel non of the constitutional error under the three-part test contained in Brooks v. United States, D.C.App., 367 A.2d 1297, 1305 (1976), I am satisfied the judgment of conviction should be upheld.

First, the untainted proof of appellant’s criminal conduct is so overwhelming that it seems to me the verdict of guilty must have been reached even had the illegally seized evidence, i. e., the photographs, not been presented at trial. Thus, the witnesses, Mrs. Ford and Mr. Washington, testified that they found most of the stolen items in appellant’s apartment. The government further established that appellant’s fingerprints were found on the wine bottle which had been left in Washington’s room; that appellant, opened his cigarette packs in the same unusual manner as had been the pack found in the burglarized apartment; that a man was seen loading a stereo into a car outside of Washington’s apartment house after the burglary at the same time and place appellant admitted he had been loading goods into a car; that appellant, after the burglary, never returned to the building and had sent a friend to retrieve his own possessions; and finally, that when confronted by the police subsequent to the burglary, appellant attempted to flee and then gave them false identification. In sum, the jury could have found independently of the illegally-obtained photographs that appellant was responsible for the theft from complainant of those items depicted in his own apartment by the photos.

Second, in applying the Brooks test, while the tainted evidence, being physical evidence, may be deemed to have had a greater impact on the jurors than would illegally-obtained testimonial evidence, for example, there are no indicia of record that the verdict rendered was a close or compromise verdict. Given all the other evidence, the photographs did not place undue emphasis on the contents of appellant’s apartment in establishing his responsibility for the crime.

Finally, in considering the third criteria of Brooks in determining whether or not the constitutional error was harmless beyond a reasonable doubt, there is nothing in the record to indicate that the defense was in any way impaired by the admission of the photographs. While it might be argued they were instrumental in securing an admission from appellant, when he took the stand, that some of the items shown by the photos to be in his room were not his own, thereby arguably weakening his version of what happened,² the testimony of the other government witnesses all presented to the jury evidence that he had possessed personal property recently stolen from complainant and placed upon him- the burden of explaining away their discovery.

Since I reach the same result as the majority, but by a different route, I agree the conviction should be affirmed.

1 . The extensive discussion in the briefs concerning the role of private citizens in first entering appellant’s apartment and discovering the property of complainant seems beside the point since the record makes clear that the police also entered his apartment without a warrant and photographed its interior. While Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), teaches that the Fourth Amendment does not apply to searches and seizures by private citizens, the record makes perfectly clear that the police entered the apartment to take photographs and their photographs were used against appellant.

2 . The defense theory was that another person who concededly had been left alone in the apartment of the complaining witness on the critical night was responsible for the theft.