*1
is
expressed
report which
in the Senate
SHEPHERD, Appellant,
Arthur R.
statute
relied on
The new
the court.
v.
incorporating
technique
abandons the
America,
UNITED
STATES
part
de-
in the
of the exclusion statute
Appellee.
portation
form
continues
statute.
It
membership
listing
in which
classes
MILLER, Appellant,
William
any
grounds for
entry”
“at
is
time after
v.
(C)
(6)
deportation.
241(a)
Section
See
America,
UNITED STATES of
(iv).
(C)
(iv),
1251(a)
(6)
8 U.S.C.A. §
Appellee.
in the
set out
these classes are now
But
BYRD, Appellant,
Bessie
indicating
present
tense,
member-
that
ground for
ship
entry
before
not a
is
America,
UNITED STATES of
deportation.
could
doubt
And whatever
Appellеe.
possibly
dispelled
both
remain is
accompanying
reports
House and Senate
Nos.
12843.
referring
recodification,
state,
Appeals
United States Court of
241(a)
(6):
to Section
District of Columbia Circuit.
“This class has been clarified to
Argued
June
clear,
make it
are
aliens who
that
Decided Oct.
not excludable under the law exist-
Rehearing
Petition for
In
Denied
Banc
entry
at the time of
because
Dec.
past membership
proscribed
May
of Certiorari Granted
Writ
subversive
are
de-
classes
not to be
See
membership prior entry ex- warrants deportation.
clusion it is For
entirely Congress deny reasonable for Communists,
admission to former how
matter far distant member-
ship. already But as for those here may
years, who have de- demonstrated
sirability acquired as residents and have property here,
families different Congress
considerations enter. in- has Party
dicated that Communist member- grounds
ship will be considered de- for entry,
portation if it occurred after enjoying alien was
while Congress course, residence. Of
Státes
may say membership sometime be- ground entry deportation. is for
fore so, it does I find
But until no basis
holding deportable. this alien Congress contrary, I think
On the provided specifically that he is
has
deportable. Cong., Cong., H.Rep. S.Rep. (1952); 82d No. 2d also No. 82d Sess. see (1952). 2d Sess. *2 Judge, dissented.
Edgerton, Chief Byrd.
ed Miller
pro-
and Mrs.
The latter
duced some
in bills from
$700
her house-
pocket, among
coat
which were
$34
marked bills. The further sum of
$66
*3
Shepherd
marked bills which
had turned
Washington,
Angelo,
D.
in
clothing.
heroin,
Mr. D.
for
A. St.
the
was found in the bed-
(appointed by
Court), with whom
apartment
C.
this
In the two-room
al-
C.,
Washington,
Cline,
D.
so
empty capsules
were
Mr. Garner J.
found
and en-
brief,
appellants.
velopes,
hall,
was on the
for
and across
in
the
a furnace
room,
capsules
heroin, 1,000
were 381
of
McIntyre,
U. S.
Asst.
Mr. Fred L.
empty capsules,
supply
envelopes
a
Gasch,
Atty., with whom Messrs. Oliver
paraphernalia
“cutting”
diluting
for
or
Atty.,
Alex-
U.
S.
and Lewis Carroll
sugar.
heroin
counts,
with milk
Two
Attys.,
Stevas,
were
ander L.
Asst. U. S.
dealing with the items found in the fur-
brief,
appellee.
A.
Mr. Leo
on
the
dismissed,
Judge
nace room were
as
Rover,
Atty.,
record was
U.
at the time
S.
Youngdahl decided the Government had
ap-
filed,
appearance for
also entered an
sufficiently proved possession
the
pellee.
furnace room аnd its contents to
at-
be
EDGERTON,
Judge, and
Chief
Before
Byrd
tributable to Mrs.
and Miller.
DANAHER,
WILBUR K. MILLER and
However,
jury
guilty
the
found them
Judges.
Circuit
Shepherd
conspiracy
on the
count
as well
on
counts,
two substantive
Judge.
DANAHER, Circuit
sale,
one of
facilitating
and the other of
charged Shepherd,
A first count
Bessie
the sale and
They
concealment of heroin.
Byrd
conspiracy
and William Miller with
urge
conspiracy
that evidence of
was in-
laws,
to violate
narcotics
and all
the
sufficient,
judge
the trial
erred in
Shepherd
charged
convicted.
also was
instructing
jury
“aiding
the
as to
purchase
with
capsules
the
distribution of 100 abetting,”
prosecutor indulgеd
the
facilitating
of heroin and with
prejudicial
argument, and that
the
concealment and
sale
the same.
denying
court erred in
their motion to
jury
guilty
found him
on all three
suppress
use in
evidence of the mark-
argument
counts,
appeals,
and he
his
Byrd-Miller
ed
found in the
apart-
suggesting
conspiracy
that evidence of
ment.
insufficient,
entrapped,
that he was
and that officerslacked
cause to
First,
Shepherd,
as to
stop
riding,
in which
a taxicab
he was
entrapment
was no
in the sense that a
incidentally
arrest,
arrest him and
design,
by government
criminal
created
capsules
officers,
to recovеr from
cab the 100
implanting
resulted in
in as mentioned.
of heroin
mind of an
person,
innocent
disposi
tion to commit an offense which was thus
Shepherd,
After the arrest of
the offi-
prosecution might
induced that
cers, having
follow.
capsules
found the 100
Rather,
squarely
the case comes
within
immediately
heroin,
went back to the
the rule which is “well settled that the
apartment occupied by
Byrd
employees
fact that officersor
of the Gov
Miller, and,
later,
a few minutes
knocked
merely
opportunities
ernment
afford
identity.
on
Thereupon Miller,
'doorand announced
facilities for the
commission of the
known
of
to the officersas
prosecution.
fense
does
defeat
violator, having
opened
a narcotics
his
strategem may
Artifice and
way, recognized
employed
part
door
the officers of
enterp
engaged
to catch those
squad
attempted
criminal
narcotics
Shepherd
pulled
to,
was a
the door. As
close
the door
“contact”
rises.”1
it, man or
resisted his
runner for
Miller,
effort
to close
mak
broke,
and the officers
á chain bolt
arrest-
outside sales from a source controlled
1. Sorrells v. United
thorized but
that were forbid- where
means
defendant
in the
by
disposing
den
law and denounced as criminal.”16 act of
nar-
cotics in the toilet. The court ruled:
Here,
v. Rab
as
States
entered, pur-
“The defendant’s
was
house
say,
inowitz,
10, may
supra
note we
knowledge
suant to the officers’
that a
course,
without
Court: “Of
a search
felony
therein,
had been committed
depend
to an arrest is
warrant incident
ground
the reasonаble
which
had
* * *
initially on a valid arrest.
ent
being
felony
to believe that a
com-
were not
if the warrant of arrest
Even
mitted in the unlawful retention of mor-
pos
arrest
sufficient
authorize the
phine,
probably
and that
a further offense
stamps,
there
session of the
was about to be
committed
conceal-
officers
for was valid because the
morphine.
breaking
ment of
entry
Such
felony
that a
cause to believe
permissible.
Wharton’s
very prese
being
committed in their
(10th Ed.)
Crim.Procedure
51.”22
§
upon
depends
Probable cause
nce.”17
Here,
stronger
under much
circum-
guilt,18
ground
for belief
reasonable
light
record,
stances in the
facts
Moreover,
surely
here.
was shown
continuing conspiracy
was a
in which
1951 ex
Columbia Code
the District of
aged
Shepherd,
residing
in Miller’s
necessary “power and
pressly confers the
house,
being
mother’s
used Miller
authority”19
warrant
to arrest without
sister,
Byrd,
his own
to assist
felony
cases.
carrying
them in
on their nefarious busi-
the in-
In
Mattus
States20
being operated
ness which was
out
officers,
eyes of the
under the
formant
apartment.
sale,
The events of the
plan
mon-
pursuant
with marked
previously narrated,
confirmed
pur-
ey,
house to
defendant’s
entered
every
operation
detail the method of
de-
shortly
returned
He
chase narcotics.
having
scribed
Reed as
occurred on
morphine
the of-
packages
handed
previous
occasions, and executed
They
house and
then entered
ficers.
previous
known narcotics
with a
violators
can be
“Here there
accused.
arrested the
record of conviction.
knowl-
that the
doubt
*7
Agnello case,23
In the
there was no
person
had
edge
house
in the
that some
arrest at
the
door
the Alba home.
felony,
they had reason-
and
committed
looking through
officers
window
that
probable
believe
cause to
аnd
able
money
saw the informant hand over
continu-
person
committed it was
who
the
ing
They
packages
to Alba.
table,
small
saw
on a
offense
of an
in the commission
they
but did not know what
con-
retaining
mor-
unlawfully
possession of
course, they suspected
21
tained. Of
nar-
had
the officers
phine.”
It’was claimed
being
“agents
cotics
sold.24
ring-
illegally
After
the house.
entered
rushed in and arrested all the defend-
knocking
the front
ing
on
and
bell
* * *
“
searching Alba, they
ants.
On
‘Open up;
out,
fed-
window, one called
”
given
Napoli-
him
found
Meet-
officers; narcotic officers.’
eral
(Emphasis sup-
tano [the informer].”25
they
an entrаnce
ing
response,
forced
no
plied.)
house,
of the
to the back
rushed
and
Cir., 1926,
20. 9
18. Here, certainty knew to a officers L.Ed. already had made their for test. 4-141; Agnello supra States, 4-140, note §§ 19. D.C.Code page supra, note S.Ct. at Shettel see appear It would the of- legality or of ft f the arrests "The deliberately get ficers to his home let made at and seizures searches they attempt- (Emphasis own front door before questioned.” of Alba is approach. ac ed If thereafter there all The conviction supplied.) emergency engaged was a semblance of re- conspirators, then cused as breaking quiring carrying of the it on house in Alba’s there clearly Neither affirmed, was created policemen officers.’ conspiracy, was private ground nor citizens can officers solely on the breaking house, justify ar into a or in” and probable cause to "rush had deliberately violence, by other ing creat- felony reason rest for a alleged necessity an it. committ had been cause believe аble Ag McKnight’s granted Since arrest was ac- A new trial was ed.27 complished by in his a needless violent found to cocaine nello as house, private invasion of a it was unauthorized of an home a result as illegal, particularly in his ab since the real there made and seizure search purpose of the invasion was not an sence. but a search.” background Against facts suggest impairment of the va- We summarized, we law as noted and the as McKnight holdings lidity of door, know the officers at Miller’s find and Accarino is cases. The instant case felony committed that a had been both, stronger, unlike is clearеr and having it to believe cause taught. quite principles within the continuing. spelled out The statute Judge Prettyman pointed out that duty is not This to arrest.28 their clear up law had been summed thus: arrest, of a case were make Agnello, supra in,” inas “ “rushed ficers broken, ‘Before doors are without entrance” “forced an note necessity doing, must be a for so Mattus, within, response from authority and notice of the supra seizures in note where the purpose to make the arrest must be sustained; nor premises arrest were given and a demand and refusal of States,29 McKnight v. United it like is made, admission must be unless this rejecting broke after where already understood, peril or the present opportunity make a convenient ” 32 (Emphasis would be increased.’ street, public nor in a a lawful arrest supplied.) yet United States30 Accarino v. like actually expressly down broke He noted the neces- where the “Unless although they require no evidence sities of the moment door *8 being premises or were had been officer break down a he cannot do that 33 felony. of a without a warrant in the commission so used they Accarino, Moreover, accused had had the in there claim was no that the days many suspect advised surveillance for officers the cause under opportunity ample to secure of their demand before had broke down had appear do so. the door. It does that ac- had failed to warrant but search police Edgerton Judge knew that had in Mc cused been wrote As Knight following days case,31 applying him or that he was the Accarino handling complicity suspected in the quoting: principle, and U.S.App.D.C. 30. 179 F.2d page 30, 46 at S.Ct. at 26. Id. 456. page 5. U.S.App.D.C. Supra page 31. note at supra page note 27. See Mattus F.2d at 978. 20. U.S.App.D.C. page 401, at 179 F.2d 32. 85 page D.C.Code, 4-143. § at 463. U.S.App.D.C. U.S.App.D.C. pаge 183 F.2d 179 F.2d places, put have such in other numbers bets various hardened narcotics traf- destroy fickers on much own notice to less his house. whatever complicity evidence there was of their opened the himself Here the accused enterprise. in the con- officers were knock, door. He had officers heard the by arising fronted the need for a decision himof had heard their identification from the necessitous circumstances of the responded themselves, and of and he judge situation. The District had to de- by was alerted their summons. That he cide whether or not the conduct of the by experience his in his business reasonable, officerswas not whether some recently transpiring and so events other course would have been better. A progress doubted. still in is not Judge Washington previous violator, some As at least he knew wrote: him named the narcotics appellant “To left have at large, me one look at his affidavit—“He took in the house while one or both of the * * — and tried to slam the door officerswent to obtain an arrest war- ref- further than brief Without more might rant and a search warrant evidence, upon sum erence to the perhaps be said to have beеn reason- through flashed total of what must have also, spite able of the risk of recognized mind, his that he escape and destruction of evidence may squad instantly as the narcotics which that course would have en- fairly not have While we do be inferred. certainly say tailed: we cannot but record, there was in the his words exact the course which the officers them, among wanted to talk and “He did take was either unreasonable doing He there.” know what we were forbidden law. ‘The relevant test to close resistance and tried then offered is not whether it is reasonable to gain may hoрed to the door. He have procure warrant, a search through escape apartment. time to whether the search warrant was rea- brought knew had He sonable. That criterion turn de- realized from his and could have pends upon facts and circum- may experience marked. He that it was atmosphere stances—the total destroy hoped marked all the have money. case.’ United v. Rabinowitz States already Certainly $66 Here the total atmos- [citation]. bed, developed and as it in his concealed phere total situation' —is such —the among later, of it $34 to lead us to sustain the officers’ totalling over she bills $700 .other action.” upon request. pocket produced from her judge The trial did not err in Shepherd had left knew that He concluding attempt of the of minutes before with 100 doorway ficers to arrest Miller at his narcotics, capsules carried him out under the circumstances this case was in furtherance of the narcotics for sale The fact not unreasonable. that his door being quar- from his conducted traffic course of his chain was broken re already fully understood That ters.34 arrest, sistance is immaterial and his the officers were who immediately made, justified. It fol sought doubted. to arrest cannot be *9 specific lows that lawful, limited search was Certainly the taken exact course be prop marked and the bills were split by the officersin a second of resist- proof erly in evidence. The received subject blueprint. was ance not the of a guilt Byrd of Miller and Mrs. was of the The officers were not confronted overwhelming and thus unanswerable. getting a decision as to a with warrant appeals The convictions in both are day Byrd. next to arrest Miller and Mrs. Shepherd Affirmed. arrest of itself The would Columbia, supra 16, App.D.C. certainly category note 73 of 34. Hе was not page 89, bootlegger 115 F.2d Nueslein who “was not a of gambler a schooled in resistance to law". 93 U.S. 35. Ellison v. United (Emphasis 476, supplied.) 4, App.D.C. 1, Nueslein v. District 206 F.2d my opinion they reason Judge (dissent- had no sufficient EDGERTON, Chief suppose evidence, was which ing). money, they destroyed wait- would be if Reed, for Clifford arrested Officers morning got ed till “Where, warrant. and a a. warrant, 1:35 about had a whom respond- here, officersare not as he them 26, told 1955. He m. March emergency, to an com- must be there appellant buying from narcotics pelling justify reasons to absence appellants got from Shepherd them who а search warrant.” McDonald United v. arranged police Byrd. The and Miller States, S.Ct. pur- amake would he Reed that m. a.3 Shepherd. About from chase narcotics a Reed, presence of Byrd The not arrests of Miller and do money Shepherd marked agent, handed course, excuse the search. a search “Of police agent supplied. Under which the without warrant an is incident to arrest went surveillance, then dependent initially on a valid arrest.” entered and N. Road W. Columbia Rabinowitz, United States v. got and out he came After basement. 432. The arrests saw stopped and it police cab, intо a illegal Byrd Miller and for two were seat. something front its under put reasons, even if the officers had there, also and They narcotics found guilty. (1) cause to believe them “Un longer Shepherd no found that less the necessities of the moment re money. marked quire door, that the officerbreak down a the basement then went officers warrant; he cannot do so without a and Road, which Columbia at 1337 contemplation if in reasonable is and by appellants occupied Miller get was opportunity warrant, a or the ar “Of- Byrd. testified: officers One rest could as well made method, some other and thе door on dwelling knocked Wurms ficer door the outer to a there?’ ‘Who from inside asked voice cannot be broken to an arrest with make ‘Blue,’ repeated name right Officer Wurms open out a warrant. The to break Miller name ‘Blue’ [a called requires a door to thing an arrest make some very in a Then he said right was known]. more the mere to arrest. than opened voice, was The door ‘Police’. nothing low required, If additional were it, on lock slightly, chain it had a right privacy man’s in his home would opened man rights street; the door and as no than on the be more his to close he tried right looked around and the without a war * * * to let didn’t want precisely door. would be the same as the rant right * * * open door forced We us in. to arrest with a warrant. The way room. Into the our and forced law is otherwise.” Accarino v. United on the door latch the chain States, U.S.App.D.C. 394, I believe F. immediately ar- McKnight broken.” 2d apart- Byrd in the U.S.App.D.C. 151, Miller rested F.2d marked They seme took Accarino, (2) ment. money Just as the officers apart- Byrd, searched from did make known their reason for de money. ment, rest found the manding entry merely but identified police. suppress themselves One Byrd moved to Miller Miller testified that “wanted to know Thе motion was as evidence. doing there,” Miller, Shepherd, we were it what does overruled. together appear ques convicted. tried answered the all evidence, I find no tion. the court apart- my opinion search of the In evidence, supports an in cites illegal sup- and the motion to ment *10 recognized that Miller even granted. ference have press should squad.1 any narcotics As as the we In officers sort. no warrant obligation to make known suggest lieved of if had rec do 1. I entry. demand for cause of their ognized been re- would have them Accarino, held in can “Before an оfficer open home,
break he must a door to a
make known the cause his demand * entry. There no claim suspect of officers advised the the cause of their demand before Upon clear down door.
broke ground breaking alone, the door unlawful, presence of unlawful, ficers U.
and so was unlawful.” the arrest S.App.D.C. page F.2d States, 93 U.S. Gatewood
465.
App.D.C.
as theirs should States, 335 United McDonaldv. 456, ACKERHALT, Colonial
Philip E. t/a Company, Paper Paint Wall Appellant, & TRUST COM SAVINGS
NATIONAL body corporate, trustee PANY, A Schlueter, Ap Angelina under will pellee.
No. 13177. Appeals States Court of Columbia Circuit. District
Argued Oct.
Decided Nov.