33 A.2d 734 | D.C. | 1943
On November 4, 1942 appellant Clay Darnall was arrested with one Rolfe Anderson on a charge of operating a disorderly house,
On the trial the hotel register was received in evidence over appellant’s objection. The register showed that in many instances rentals on particular days exceeded the hotel’s capacity. Though the building contained but thirty-two rooms there were often forty to sixty-five rentals on a single night. One room in particular was shown to have been rented several times in a single day.
Appellant contends that the warrant of arrest was void because of the insufficiency of the supporting affidavit; that the arrests and attendant seizure were therefore unlawful; and that the hotel register, as unlawfully seized property, was inadmissible in evidence. The government argues that there is no basis for appellant’s contentions, since the warrant of arrest and supporting affidavit were not made part of the record on this appeal; that appellant waived any defects in the arrest by pleading “not guilty” to the information before moving to quash the warrant of arrest; and that appellant may not complain of the receipt of the hotel register because he failed to insist upon a disposition of the motion to suppress before trial.
Pursuant to our Rule 31, we have ordered the warrant of arrest and supporting affidavit made a part of the record (together with the entire original file of the trial court) and they are now before us. It is clear from its face that the affidavit was completely insufficient and the warrant of arrest therefore void.
We do not say that it was improper for the trial court to overrule the
The propriety of an arrest does not “affect the question of the defendants’ guilt or innocence. It only affect [s] the right of the court to hold their persons for trial.”
Though the question now considered was not raised, it was involved in Bolt v. United States, 55 App.D.C. 120, 2 F.2d 922. There the defendant was arrested without a warrant and charged with carrying a concealed deadly weapon. On the trial a revolver which was taken from defendant at the time of the arrest was received in evidence against him. Defendant did not raise the illegality of the arrest and search as an objection to the court’s jurisdiction over his person before pleading to the information on which he was tried. However, prior to his plea of not guilty, he moved to suppress the revolver as evidence on the ground that his arrest and search were unlawful. The motion was overruled, as was the same objection when renewed at the trial. On appeal, the court held the arrest and search unlawful and the revolver inadmissible in evidence. See also Ford v. United States, supra, and Bennett v. United States, 70 App.D.C. 76, 104 F.2d 209; Cf. Pleich v. United States, 9 Cir. 20 F.2d 383.
Since the warrant of arrest in the case at bar was void, the arrest was unlawful; for it was for a misdemeanor not committed in the presence or within the view of the arresting officers.
The rule was clearly stated by the United States Court of Appeals for this District in Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690, 694, in this language: “ * * * an illegal search cannot be legalized by what it brings to light (Citing cases). * '* * Officers should not be encouraged to proceed in an irregular manner on the chance that all will end well”.
There is nothing in the record to indicate that the failure to rule on the motion to suppress was attributable to appellant. Since even an adverse ruling on the motion would not have precluded him from raising it again at the trial
As was said in the Nueslein case, supra, “A simple, effective way to assist in the realization of the security guaranteed by the IVth Amendment, in this type of case, is to dissolve the evidence that the officers obtained * * The admission of the hotel register violated this rule and constituted prejudicial error requiring reversal.
There is no indication in the record, nor is it contended by the government, either in its brief or oral argument, that appellant intended to waive the objection now being considered to the admissibility of the hotel register, by the stipulation entered into at the commencement of the trial. The stipulation that only the hotel register would be offered in evidence does not imply an agreement that no objection would be made to it when and if offered. That the right to object was reserved seems clear from the fact that objection was made at the trial, and also assigned as error here, without any assertion by the government that the stipulation was intended as a waiver of the right to object on the ground of illegal seizure. The motion to suppress covered certain evidence in addition to that covered by the stipulation. It would appear that appellant merely agreed to proceed to trial without a prior determination of the motion to suppress, so long as nothing but the evidence covered by the stipulation was even to be offered in evidence.
Other rulings are assigned as error by appellant, but those we do not decide, in view of the disposition we have made on the main question.
Reversed and remanded.
Code 1940, § 22—2722.
U.S.Const. Amend. IV; Byars v. United States, 1927, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 and eases cited therein.
Cf. United States v. Borkowski et al., D.C.S.D. Ohio W.D., 268 F. 408.
Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 535, 71 L.Ed. 793; Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505, is to the same effect. However, there the government also filed proper affidavits with leave of the court prior to the motion to quash.
Marks v. Frigidaire Sales Corp., 60 App.D.C. 359, 54 F.2d 974.
Ford v. United States, supra, 273 U.S. at page 606, 47 S.Ct. at page 535, 71 L.Ed. 793.
Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Segurola v. United States, 275 U.S. 106, 48 S.Ct. 77, 72 L.Ed. 186; Harris v. United States, D.C.Mun.App., 32 A.2d 101.
Code 1940, § 22—2722; 18 U.S.C.A. § 541; Maghan et al. v. Jerome, 67 App.D.C. 9, 88 F.2d 1001.
Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Bolt v. United States, supra.