DISTRICT OF COLUMBIA, Appellant, v. M. E. H., Appellee.
No. 6439.
District of Columbia Court of Appeals.
Nov. 28, 1973.
As Amended Dec. 5, 1973.
312 A.2d 561
Argued July 2, 1973.
Mervin Cherrin, Washington, D. C., for appellee.
Before REILLY, Chief Judge, and KELLY, FICKLING, KERN, GALLAGHER, NEBEKER, PAIR, YEAGLEY and HARRIS, Associate Judges, sitting en banc.
PAIR, Associate Judge:
This appeal by the District of Columbia (District) raises an important question respecting the jurisdiction of this court to review orders of the Family Division of the Superior Court, entered at the prehearing stage of a juvenile delinquency proceeding. The appeal was heard initially by a division of this court which, by an order entered April 23, 1973, dismissed the appeal for want of jurisdiction—one judge dissenting. However, upon petition for rehearing en banc, the court on May 24, 1973, vacated the opinion and order of the division and ordered that the case be reheard by the court sitting en banc.
By petition filed in the Family Division of the Superior Court, it was charged (1) that M. E. H., a child, “. . . did carry on or about his person a pistol, without a license as required by law” in violation of
On motion of the child the court suppressed as evidence the pistol and suppressed also certain statements made by the child prior to his arrest. The District appealed and was met at the threshold with a challenge to its right to appeal,1 the specific contention being that the child, although petitioned for carrying a pistol and for possessing a pistol which had not been registered, was nevertheless not charged with a criminal offense for the purposes of
We notice at the outset that a juvenile delinquency proceeding is not a criminal prosecution, that it does not result in a judgment of conviction of a criminal offense, and that no civil disability or other consequence usually associated with a criminal conviction flows from an adjudication of delinquency. See
The simple and inescapable fact is, however, that a child involved in a delinquency proceeding is before the court only because he is charged with the commission of an offense proscribed by the criminal law. Unless, therefore, the child committed such an offense he could not under any circum
The rules now governing juvenile proceedings in the Superior Court provide that pleas and findings are either “guilty” or “not guilty” rather than “involved” or “not involved“. See Super.Ct.Juv.R. 11 and 31(c). [In the Matter of: R. L. R., D.C.App., 310 A.2d 226, at 227 n. 2.]
The business the juvenile court is about is the administration of justice in accordance with humanitarian concepts now well established in our jurisprudence.3 In the process, the applicable due process standard is fundamental fairness. See McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
We cannot conceive that it would be fundamentally unfair to allow the District to challenge an order entered prehearing, which suppresses evidence in a juvenile delinquency proceeding. Nor can we conceive that any of the beneficent purposes of the Juvenile Court Act will be defeated by such an appeal. We therefore construe
The legislative history of the District of Columbia Court Reform and Criminal Procedure Act of 1970 discloses without any serious question that the Congress intended to provide the District of Columbia with the same right to an interlocutory appeal as that provided the United States by
A comprehensive format for appeal by the prosecution in criminal cases is provided. Its purpose is to guarantee the public its right to a fair trial. Existing section 23-105 of the District of Columbia Code provides in pertinent part, that “In all criminal prosecutions the United States or the District of Columbia, as the case may be, shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions.” Because of its general language, existing section 23-105(a), which
intended to grant the prosecution an extensive right to appeal, has been very narrowly construed by the courts. E. g., Carroll v. United States, 354 U.S. 394, [77 S.Ct. 1332, 1 L.Ed.2d 1442] (1957). It is the Committee‘s intent to set out in specific language those situations, which in fairness to the public, require the prosecution to have the right to appeal.
. . . . . .
. . . The only change [in § 23-104(a) from § 23-105] is the addition of the clause permitting the appeal from a pretrial order which “denies the prosecutor the use of evidence at trial,” a clause necessary to overcome the excessively narrow interpretation accorded the existing statute in United States v. Greely, [134 U.S.App.D.C. 196] 413 F.2d 1103 (1969) (denial of motion to reopen suppression hearing).7
Moreover it is not without significance that in identifying the proceedings in which the government is permitted an interlocutory appeal, the Congress, in amending in 1968
Although, as pointed out above, a juvenile delinquency proceeding is not a criminal prosecution and could not result in a judgment of conviction of a criminal offense, the child was nevertheless charged with the commission of an offense proscribed by the criminal law or else he would not be before the court.
We turn now to the government‘s challenge to the order suppressing as evidence the pistol and the child‘s pre-arrest admissions. At the hearing on the motion to suppress there was testimony in substance as follows.
On January 28, 1972, about 11:00 p. m., there was an altercation at or near the front of a tavern. A police officer broke up the altercation and three of the persons involved went into the tavern. The police officer was informed by an unidentified person that one of the three persons who went into the tavern had a gun, that he was a “white male, with a buckskin jacket on . . . [and] long blond hair, a beard and mustache.”
The police officer thereupon entered the tavern and observed four persons seated in a booth, one of whom answered the description which had been given to him. The officer identified himself and stated that he had reason to believe that one of them had a gun. The four persons were asked to stand up and the officer frisked them. Finding that none of them had a gun, the officer requested them to step out of the booth and, when they complied, the officer observed in plain view on the floor of the booth a pistol and seized it. The officer then inquired as to the ownership of the pistol and the child, the person who answered the description given the officer, replied, “[I]t‘s my gun, I don‘t want to get anybody else in trouble.” The child was then placed under arrest, after which these proceedings were commenced.
Controlling in this area of Fourth Amendment considerations are the decisions of this court in United States v. Walker, D.C.App., 294 A.2d 376 (1972);8 United States v. Frye, D.C.App., 271 A.2d 788 (1970); and Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476 (1968).
Almost directly in point is United States v. Walker, supra. There an unidentified informant advised two police officers that
The credibility of a paid or professional informer may be suspect, but in our opinion the same cannot be said of a citizen reporting a crime. While the citizen here did not specifically say he had seen the pistol in Willie‘s possession, such was the clear inference from his report. [United States v. Walker, supra at 378; footnote omitted.]
In the case at bar the officer was informed—as was the officer in United States v. Walker, supra—that a man, whom the informant identified, had on his person a pistol. Entering the tavern and observing a man answering the description given him by the informant, the officer by reason of his capacity had not only the right but the duty to investigate and, in the process, to determine preliminarily whether such person was armed. United States v. Walker, supra. See also United States v. Frye, supra; United States v. Dowling, D. C.App., 271 A.2d 406 (1970); Gaskins v. United States, D.C.App., 262 A.2d 810 (1970); Daniels v. United States, 129 U.S.App.D.C. 250, 393 F.2d 359 (1968). See and compare Williams v. United States, D. C.App., 287 A.2d 814 (1972); Davis v. United States, D.C.App., 284 A.2d 459 (1971); Shellie v. United States, D.C.App., 277 A.2d 288 (1971).
The trial court apparently ignored this controlling case law for, without attempting to distinguish either United States v. Frye, supra; United States v. Dowling, supra; or Gaskins v. United States, supra, it granted the motion to suppress the pistol saying:
The Government has failed to ‘show any independent evidence which substantiates the officer‘s testimony about the unknown informer. . . .[I]t is the opinion of this Court that the proof sufficient to sustain the Government‘s position under these particular conditions, when a nameless informer is involved, must include additional information. . . .
Because this holding flies in the face of United States v. Walker, supra,9 we cannot permit it to stand. Nor can we permit to stand the trial court‘s holding in respect to the statements made by the child prior to his arrest. In this connection, it was said by the trial court:
Finding the gun in the booth where these four had been sitting confirmed the officer‘s suspicions. At that time he had reason to believe that a crime had been committed and therefore had probable cause for an arrest. Before making any arrest, the officer questioned the men and after this questioning the Respondent [appellee] admitted ownership of the gun. The Court finds that this questioning was carried out without the precautionary warnings required by Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966). . . .
By custodial interrogation, the Supreme Court explained in Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612:
[W]e mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Emphasis supplied; footnote omitted.]
Here, as the trial court recognized, the interrogation was addressed to “the men” rather than to the child and, in this respect, was the kind of on-the-scene group interrogation approved by this court in Wells v. United States, supra, 281 A.2d at 228. Said the court in that case:
Miranda applies only to custodial interrogation. We do not think that the fact that a person is present and is requested to be seated during the execution of a search warrant in itself creates custody. . . . Nor do we think there was any interrogation of an accused. To ask a group of persons not in custody about the ownership of a coat is not an interrogation of a suspect as contemplated by Miranda. [Emphasis supplied; Citations omitted.]
Because the trial court erred when it suppressed as evidence the pistol and the child‘s non-custodial statements, the order is vacated and the cause is remanded for further proceedings not inconsistent with this opinion.
So ordered.
NEBEKER, Associate Judge, with whom HARRIS, Associate Judge, joins, concurring in the result:
While there is some surface appeal to the literal approach of the dissent, I suggest that the use of labels such as “conduct of prosecution“, “defendant“, and “delinquent child” is not really helpful in resolving the jurisdictional issue. An examination of
I recognize that generally government appeals are not favored, United States v. Greely, 134 U.S.App.D.C. 196, 413 F.2d 1103 (1969), but it is apparent that in the District of Columbia Court Reorganization Act of 1970, Congress did intend to enlarge the right of appeal from suppression orders and other orders excluding evidence. Ever since Carroll v. United
On the merits of this appeal I do not find it necessary to reach the Fourth Amendment issue. I agree that had there been a search of M. E. H. and a seizure of the weapon from him, it would have been proper. However, the fact is that the weapon was recovered from the floor where M. E. H. had abandoned it before any constitutional intrusion had occurred. In these circumstances, there was no search and seizure of which M. E. H. may complain. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 2057, 36 L.Ed.2d 854 (1973), citing Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Smith v. United States, D.C.App., 292 A.2d 150 (1972); Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559 (1968).
REILLY, Chief Judge, also concurs in the result.
KERN, Associate Judge, with whom KELLY, Associate Judge, joins, dissenting:
The court‘s decision to entertain this concededly interlocutory appeal results from (1) its failure to apply the juvenile code the way Congress enacted it as a part of the District of Columbia Court Reform and Criminal Procedure Act of 19701 and (2) its refusal to recognize the long-standing distinction between criminal and juvenile proceedings first spelled out for this jurisdiction in comprehensive fashion by Judge Prettyman in Pee v. United States, 107 U.S.App.D.C. 47, 49-50, 274 F.2d 556, 558-559 (1959), and recently reaffirmed by this court. In re J. T., D.C.App., 290 A.2d 821 (1972).
We are required to start with the proposition enunciated by Mr. Justice Frankfurter concerning finality of an order or judgment as the absolute prerequisite to its appeal. He stated for the Supreme Court:
The general principle of federal appellate jurisdiction . . . requires that review of nisi prius proceedings await their termination by final judgment.
. . . . . .
. . . Congress has recognized the need of exceptions for interlocutory orders in certain types of proceedings where the damage of error unreviewed before the judgment is definitive and complete . . . has been deemed greater than the disruption caused by intermediate appeal. [Di Bella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962).]
See 9 J. Moore, Federal Practice § 110.06 (2d ed. 1973).
Where then does the majority find authority for our jurisdiction to entertain the government‘s interlocutory appeal in this case? Having found none in the carefully-drawn “juvenile code” enacted by Congress in 1970 to govern District of Columbia juvenile proceedings,4 it turns to that part of our Code denominated “Criminal Procedure.” Ignoring the multitude of decisions by this court, the federal circuit court, and the Supreme Court that a delinquency proceeding is not a criminal prosecution,5 the majority seizes upon Section 23-104(a), clearly a criminal statute,6 as being dispositive of the jurisdictional issue in this case. Section 104(a), contained in Title 23 which commences with a Section on “Conduct of Prosecutions” and ends with a Section on “Place of Execution“, reads in pertinent part:
The . . . District of Columbia may appeal an order, entered before the trial of a person charged with a criminal offense, which suppresses evidence . . . if . . . the Corporation Counsel conducting the prosecution for such violation certifies . . . the appeal is not taken for purpose of delay and the evidence is a substantial proof of the charge pending against the defendant. (Emphasis added.)
The majority then adopts the following syllogism: The petition filed in the Family Division in this case alleges the juvenile is a “delinquent child“;
a “delinquent child” is defined in
Section 16-2301 further defines a “delinquent act” as an act “designated as an offense under the law of the District of Columbia“;
and, therefore, the juvenile in this case is “a person charged with a criminal offense“, as provided by Section 23-104 and we may entertain this appeal.
But this approach ignores the fact that Section 104 expressly applies only to an order entered before “trial“, whereas the or
Also, under any accepted principle of statutory construction, Section 104 could not be read as applicable to the juvenile proceeding in this case because appellee is not “charged with a criminal offense“, In re Coward, D.C.App., 254 A.2d 730, 732 (1969), remanded on other grounds, 139 U.S.App.D.C. 30, 429 F.2d 214 (1970); the Corporation Counsel in this delinquency proceeding is not “conducting” a “prosecution“,
Apparently realizing that its manner of construing Section 104 is contrary to the way that Section is written and elides the long-standing distinction between juvenile and criminal cases, the majority invokes the rubbery concepts of “fundamental fairness” and “beneficent purposes” to support its conclusion that we have jurisdiction of this appeal.8 But no principle is more crystal clear than that an appellate court may hear appeals from non-final orders, as is the order in the instant appeal, only if the legislature has expressly conferred jurisdiction to hear such an interlocutory appeal. Since Congress has not granted us authority to review this particular kind of interlocutory order in a juvenile proceeding any considerations of fairness and good purpose are of course beside the point.
It is true that the government in this case spins forth an alluring “public policy” argument that it should have the right to appeal from suppression orders in juvenile cases else dozens of delinquents charged with serious crimes will somehow escape unscathed from the toils of the law.9 This is good advocacy but wholly irrelevant to the issue of jurisdiction presented by this appeal. Historically, prosecutors made the same argument with respect to criminal suppression orders, which were formerly not reviewable on appeal, but the Supreme Court pointed out that it was for the legislature to grant the relief prosecutors sought. See Di Bella v. United States, supra, 369 U.S. at 130-131, 82 S.Ct. 654, 7 L.Ed.2d 614.
However desirable it may appear from a “public policy” standpoint for the court to remedy the omission by Congress from the 1970 Act and to confer upon the government the right to appeal from suppression orders in juvenile cases, it is up to Congress, not this court, to remedy the disadvantage resulting from the statutory void
[I]n supplanting congressional objectives with our own purposes and objectives, we are usurping a power which does not belong to us. For judges to think otherwise is not a mistake but a delusion. [Viola v. United States, 483 F.2d 1209 (D.C.Cir., dissenting opinion, June 13, 1973).]
Since I cannot join in the judicial activism the court today embraces, I respectfully dissent.