Franklin R. Masiello v. United States
304 F.2d 399
D.C. Cir.
1962
Check Treatment

*1 MASIELLO, Appellant, Franklin R. America, STATES of

UNITED Appellee.

No. 16657. Appeals

United States Court Columbia Circuit

Argued 7, 1962. Feb. 10, 1962. May

Decided Rehearing by

Petition Division Denied June Rehearing

Petition for Denied En Banc En Banc June Smith, Washington, David F. C., appellant.

D. *2 Rezneck, pellant Asst. U. S. A. Daniel testified that he heard a Mr. knock apartment on Atty., C. Ache- whom Messrs. David his door with and announce- ment, Paulson, “police”; and son, Atty., Nathan J. ten U. S. that within seconds Attys., thereafter, Flannery, U. S. Thomas A. Asst. which interval had he minute,” brief, appellee. said, for “Just on a and had been open Aikens, Atty., door, also about T. Asst. U. S. to Arnold broke open door; appellee. prior appearance for his entered an to in they did not announce a had search and Bur- Before Edgerton, Bazelon warrant. Judges. ger, appear It would over- court Judge. BAZELON, Circuit statutory requirement looked the purpose officers state and their hence it on all three was convicted appellant’s testimony failed to consider charging gam an of indictment counts that no such made. bling He reversal violations.1 seeks ruling express For the among ground, others, the Dis sup- court press of rested denial 'pre his denied trict only require- dealt with 3109's § motion, under Rule ment that the officer be “refused Procedure,2 of Federal Rules Criminal open admittance” he “break to certain evidence. require- door.” The court held that [a] alleged this evidence— motion His op- “in ment a numbers satisfied books, revolver, and a which included pieces eration, of ten a wait seconds doesn’t a paper been seized of —had too seem to be soon.” me to Since premises pursuant a to search his pur- officers' failure to announce their pose in violation which was executed warrant non-compliance established au- section 3109. That 18 U.S.C. § appellant's 3109, we not consider need open a door in to an officer break thorizes delay a ten-second could contention that to execute a search order interpreted properly as a refusal not “his au- has notice of he after meaning the officers within the (cid:127) has thority purpose” and he after of that section. admittance.3 been refused any Appellant’s failed to call a made hearing. showing prima facie fail- witnesses D.C.Code, and 1505. not be admissible §§ tention it shall any hearing or trial. The evidence motion provides: rule 2. That also aggrieved by an unlawful “A the trial district where may move the and seizure district motion be- be had. The shall made prop- opportunity district for the court erty unless trial or fore for return of the was seized or the defendant was not exist therefor did property motion, grounds use as and to for the aware anything so obtained evidence ground in its discretion en- property illegally (1) the or hear- tertain (2) warrant, or the war- 41(e), seized Fed.R.Crim.P. U.S.C. face, (3) or on its is insufficient rant ' property is not that described 3.That section reads: seized any warrant, was not “The break outer or officer house, believing inner or window of or the existence or door house, anything part any or there- on which the warrant if, warrant, illegally in, issued, after the warrant was execute authority shall receive evi- notice his executed. necessary necessary or when refused admittance liberate himself issue dence person aiding aor him If the motion. decision of the property of the warrant.” restored the execution shall be subject to lawful U.S.C. otherwise unless purpose trial court hold- execute and considered ing ed to announce their warrant, by 3109. required the evidence admissible. implausi inherently testimony, This ble, appear present it does not *3 On uncontradicted.4 the offi- the trial court considered testimony ensuing entry record the and the officers’ expressly cers’ it at since trial held unlawful should have been ruling. pre-trial refused to reconsider its United under v. 3109. See Miller speculate trial on how the We should 306, States, 301, 308, 78 S.Ct. 357 U.S. court testimony the conflict would have resolved 1190, (1958); v. Hair 2 1332 L.Ed.2d appellant offi- and the 153, States, U.S.App.D.C. United 110 cers, applied and how it have would (1961); 155, 894, Accarino 289 896 F.2d correct In view of the law. Carroll 394, U.S.App.D.C. States, v. 85 United testimony was no re- to be conflict 456, (1949). 403, 179 It follows F.2d 465 solved, probable but a lack of evidence of denying that pre-trial court below erred hearing pre-trial cause at supplied which was suppress. m.otion at trial. The in testi conflict unresolved out, points The Government how mony affirming judg precludes our police tes that at trial the officers Supreme ment as in Car Court did pur tified that did announce their appropriate roll. We these pose to execute a search warrant before judgment circumstances to vacate the urges door. case a determination remand considered of the motion to confined to the determining compliancewith the issue of issue whether the search warrant was agree 3109. We that the entire rec executed violation of 3109.5 ord, which evidence at includes adduced findings District Court should make pre-trial hearing trial, both the and the on the issue. and conclusions deciding whether considered in For this consider prejudicial. the error was Carroll v. hearing, pre-trial the evidence at at States, 132, 162, United 267 U.S. 45 S.Ct. hearings 280, (1925). 69 L.Ed. 543 ap deemed advisable pellant’s If remand. Supreme In Carroll the Court refused denied, ground to set aside a conviction judgment new final should be entered. pre-trial for the return Any appeal therefrom would restrict evidence have questions ed to to the related determina pre- nied. Petitioner claimed require. If, tion we now which trial probable failed to establish hand, cause for granted, a new trial should be ordered. Supreme evidence was seized. The pre-trial point held it immaterial whether the raised improperly motion was which denied since ad- merits discussion relates testimony establishing probable sufficiency ditional officers’ subsequently presented cause was affidavit for the trial issuance of arrest Skeeters, pre-trial Cf. United v. States 122 Had the mo F. Supp. 52, (S.D.Cal.1954); tion, prevented 57 United have would 25, Warrington, sup introducing States v. Government from 17 F.R.D. 29 (N.D.Cal.1955). pressed evidence trial. See United Stephenson, U.S.App.D.C. v. 96 States 44, States, 253, 45, 336, (dic 5. See Rios v. United 364 223 F.2d U.S. 337 tum). 1431, Koenig, 80 S.Ct. 290 4 L.Ed.2d 1688 United States Cf. (1960). 166, States, 1961), Killian 173-174 Cf. v. United af 244, 231, 302, firmed, 368 U.S. 82 DiBella v. U.S. S.Ct. 7 L.Ed.2d United 369 (1961). imply We do not S.Ct. L.Ed.2d “exceptional impunity (dictum: fail circumstances" produce might require its witnesses at the de court to of suppress* suppressed). motion previously termination ambiguously Per- that Private con- warrants.6 also, jointly affidavit, kins either the conduct sworn to observed tends that the by officers, in a else that he parently the observer. observed two “narrative, We think in which did neither.8 third impossible Commissioner tell what require clarification. personal knowledge, was been well advised to or what may result difficulties Government Since needless sworn on belief.” The joint indi- from the use affidavits in “the affidavit counters that warrants, prac- applications components of cates how- tice information obtained undesirable. this consisted of cause by *4 Henson persons, derived Private the affidavit of sufficient, it is personal from officers, observations alone have been identify possible personal observations and whose information conclude which he therefore swore. We these were.” affidavit does defect somewhere lies We that truth warrant reversal. interpretations of the these two between case is remanded that affi- affidavit. proceedings consistent Court aspects of his davit recounts certain opinion. with this indicating who observed conduct clearly it. states that So But the affidavit ordered. affiants, Henson, ob- one of the Private question. all conduct served Therefore, concurring. BURGER, Judge, the affidavit from the face of I form concur in the remand in this possible tell what self-executing provides because knowledge personal of at least as mechanism in the event the District purpose Rule one 41(c)’s requirement the affiants. The finds, record, that on the entire name of the that 3109 was It not violated. should accomplished since affiant lapse that while time clear to, fact, did able can- and a break-in challenge legality “probe defined, rigidly plainly warrant.” identify requires themselves think, however, their warrant as authority and that We state Govern- Inevitably when it said in. ment overstated the case incriminating accused found with ma- indicates who an the affidavit deny police will assertions of clear that terials observations. compliance The con- with the statute. conduct Private Henson observed question, must then be resolved flict in the affidavit so states. Appellate by by the fact trier. review But affidavit was also sworn to findings is narrow and limited but We think that Private Perkins. they are reviewable. in which the affidavit was King See the United fourth amendment 6.The 1960). provides “no Constitution issue, upon probable shall but Warrants cause, supported * * Perkins at the Private testified Oath or affirmation requires 41(c) he learned about some of prob- Henson’s observations when the Private “shall state the to him in them the eve- latter recounted and the names its issuance able conduct, ning; persons "I whose affidavits have been area, sitting have been thereof.” Fed.R.Crim. taken did the observa- 41(c), not make outside X P. 18U.S.C. inside Private Henson the build- tions of