*1
CLARK,
K.
Before
WILBUR
MIL-
WASHINGTON,
LER
Judges.
*2
Judgе.'
MILLER,
During
morning
September-
K.
WILBUR
Brewer,
Officer
of the Narcotics.
sitting
judge,
without a
The trial
Squad
Metropolitan
Police De-
guilty
jury,
of'
found Daniel Gatewood
partment,
anonymous
by
tip
received an
concerning
violating penal
nar-'
statutes
telephone thаt Elizabeth Williams could!
-
appeal,
cotics.
question
this
ultimate
On
Apartment
be found in
39 at
Mon-
police
il-
had
is whether
’
Street, N.W.,
roe
in the District of'
legally
apartment
entered Gatewood’s
squad,
therein,
Columbia. Brewer and his fellow
they
when
seized
members,
Pаnetta,
Holcomb and
knew
which
of his convic-
became the basis
been,
the bench warrant
for her had
tion.
September 15;
they
issued
so
acted:
manner,
In
unusual
a somewhat
telephonic
on the
information without-'
grew
charge against
out of
Gatewоod
making
inquiry
Headquar-
at Police
(cid:127)
against
charge
another.
an unrelated
that,
ters which would have revealed
indict-
was under
days before,
two
Elizabeth Williams had!
ment in the District of Columbia
been
in
arrested
under
Ohio
the bench
had
a
apparently
violation. Because she
narcotics
custody
and was then in
there-
“jumped bail,”
war-
a bench
.
They
Apartment 39,
under.
went
September
her on
rant was issued for
15,
they
Gatewood's,
which
knew
and’
was
September
the Metro-
1952. On
one
them knocked on the door. A
Department
a tele-
politan
sent
Police
there,
voice from within
who
asked
was
message
Department
type
Police
to the
replied,
one
“From:
and
of the officers
Ohio,
Eliza-
Dayton,
described
Thereupon
Western Union.”
Gatewood'
Williams,
wanted
she wás
said
beth
opened
door,
attempted
to close'
warrant, told where and
on bench
here
a
again
when
saw
three men.
in.Day-
might be found
she
with whom
way
policemen
in. Ac-
The
cording
forced
ton,
requested her arrest.
Panetta,
solе
for-
witness
by
police replied
Dayton
tele-
government, it'
were-
was
They
type September
advised
already
in
the of-
Dayton
in
had been
Williams
Elizabeth
explained
ficers
their mission to Gate-:
18, but had left-
September 17 and
on
way:
in
wood
and,
“Candy”
as
known
with a woman
him
had
“We told
we
informa-
Hamilton,
reportedly
Ohio,,
in
then
was
Libby Witt,
tion that
Elizabeth Etta
rooming
on Chestnut Street,
house
a
Libby Witt,
.'
alias
had
Williams
we
operated
Remus.
one
was
information -that she
in his
information,
Acting
Met-
on this
apartment/’
V
Department wired the
ropolitan Police
They
indentify
fugi-,
did
her as a
Hamilton, Ohio,
Department of
Police
say
They did
a
tive.
message de-
September
on
that,
.outstanding,
her arrest
they
nor
Williams,
she
advised
Elizabeth
scribed
purpose
entered for the
had
of.
on a bench warrant
hеre
was wanted
arresting her.
reported
jumping,” and was
for “bond
rooming
inside,
Negro*
saw
house Once
officers
Chestnut Street
at the
sitting up
beyond.
company
a' woman
bed in the room
girl
with
Hamilton
found;
message They
immediately
“Candy.”
teletype
went
in and
A
known as
Sеptem-
police,
was not Elizabeth
dated
she
Williams. But
Hamilton
from the
white-,
pile
did observe a
had
Williams
loose
said Elizabeth
ber
lying
magazine
requested,
powder
on a
apprehended
and had
as
dresser.
glassine
They
date,
envelope
also saw a
the same
con-
On
extradition.
waived
taining
acknowledgment,
powder,
police
powder-
more white
wired
local
knife,
strainer,
saying
marked
warrant would
States
in*
$202
currency.
questioned,
When
and would be handled
follow
Gatewood
powder
by.
office.
said
was for his own
Marshal’s
use
States
snorting.”
“Upon
ground
The material
alone,”
was seized enter.1
that clear
.and
Gatewood
arrested.
Later
as we
opinion,
said
the Accarino
indicted,
breaking
unlawful,
tried
“the
of the door was
*3
presenсe
we have indicated.
the
apart-
of the officers in the
unlawful,
ment was
and so the arrest
testimony,
In addition to Panetta’s
2
ruling just
quoted
unlawful.”
The
above,
stipulated
outlined
it was
that
applies
greater
where,
with even
force
government
analyzed
the
chemist who
here,
purpose
as
the unannounced
of
identify
powder
the
it as
white
would
forcibly
officers who
grains
invade a
hydrochloride, qui-
citizen’s
287
of heroin
home is not to arrest him
some
hydrochloride
sugar,
but
other
nine
and milk
and
person
thought
who is
to
within.
say
knife,
would
the
the
the strainer and
magazine showed traces of the same
is
It
true the
in
officers
the
mixture.
Accarino case
any
had no warrant of
States, kind,
In Accarino v. United
while here a warrant for the arrest
1949,
394,
456,
U.S.App.D.C.
85
179 F.2d
of Elizabeth Williams had theretofore
465,
and
thought
we reviewed the authorities
been issued and the officers
it
holding
outstanding.
found
in
that
regard
them unanimous
was then
We
that
open the
before an officer can break
immaterial;
factual difference as
for
home,
door
he
known
to а
must make
if
an officer is armed with a war
entry.
demand for
The
person
the cause of his
rant of arrest
for a
he believes
government’s
in this
show
home,
may
case
is in
another’s
he
not law
gained
fully
entrance to Gate-
ed the officers
break and enter the house to make
through
fol
apartment
falsehood
wood’s
the arrest unless he first discloses his
disclosing
by force,
first
without
purpose
lowed
true
to the
of
inmates
the house
to
desired
to him the true
and is refused admittance.3
can,
Entry
course,
open
of
house,
l>y
1.
stealth
to
the
and a refusal
entry by
illegal
the
use
320,
unlawful as
do
them to
so: Foster
1 East P.C.
States, 1921, 255
326;
459;
United
Smith,
Gouled v.
force.
1 Hale P.C.
v.
State
261,
298,
(Emphasis
L.Ed.
supplied.)
65
647.
41 S.Ot.
U.S.
1
346.”
N.H.
Supreme
Tennessee,
The
Court of
page 403,
U.S.App.D.C. at
179 E.2d
2. 85
Tate, 1921,
268,
Smith v.
143 Tenn.
page
at
465.
1026, 1027, quoted
ap
227 S.W.
with
impossible
proval
following
would be
the
dictum from
“Otherwise
its
3.
object
per
opinion
McCord, 1906,
know what the
McCaslin v.
one to
116
might
690,
be,
707,
breaking open
79,
and
the door
94
Tenn.
S.W.
83.
son
“
*
* *
[Wjhere
right
to consider it
the owner has
an officer has rea-
private prоperty
agression
person
his
sonable cause to believe
that
the
person
may
[Cases
the
to the utmost.
named
or a
be resisted
whom
charge
to
seeks
arrest on a
of fel-
cited. 1”
quoted
ony,
foregoing
dwelling
another,
from
an-
the
the
house of
right
house, and,
v.
to
Hawkins
1854,
Commonwealth
has
search
notations to
[Ky.j
Kentucky,
Ben.Mon.
2d
after demand for
14
admittance and notice
being
purpose,
open
of his
to break
61 Am.Dec.
note
doors
ed.
if
necessary
prosecute
page
(Com.
his
157.
sеarch
Cush.,
Bartlett,
Reynolds,
Am.Rep.
v.
10
v.
120
In Barnard
Mass.
21
* * *
510;
Irwin,
Mass., 501, 502,
Allen, 587;
57
Am.Dec.
Com.
1
Brown,
505;
State v.
5 Har.
said:
[Del.]
Bar-
every
Bartlett,
law that
man’s
maxim of
nard v.
“The
10 Cush. [Mass.]
57
*
**
* *
123)
has
is Ms castle
house
Am.Dec.
following
an officer of
law
restrain
cases
effect
serve also to il
entering
dwelling-
brеaking
principle:
from
lustrate
Gibson v. United
serving
purpose
States,
U.S.App.D.C.
crim-
house
80
upon
process
381;
the owner.
In such
F.2d
Colebrook,
inal
United States v.
n case
party
D.C.S.I).Tex.1931,
307;
is no sanctu-
house of
him,
ary
Waller,
same
D.C.N.D.Ill.1952,
be forci-
States v.
prop-
F.Supp.
bly
suсh officers
entered
Cf.
Johnson v.
purpose
er
notification of
upon
entry,
a demand
the inmates
92 L.Ed.
only
just
quired,
were
would have learned
If
rule
stated
say,
and!
if it were that the warrant had
executed
otherwise—that
outstanding,
possession
was not
Eliza-
or еxistence
rule
also
Gatewood’s,
person
of arrest for the
beth Williams was
of a warrant
sought
anonymous,
legalizes
an officer’s
and that
somehow
illegal entry
another’s information to that effect was incorrect.
into
otherwise
apply thе
home—we
nevertheless
should
said,,
On the
of what
basis
has been
because, when
here
Accarino doctrine
point
opinion
could end
this
we
by
apart
Gatewood’s
the officers entered
holding
unlawful,,
that the
ment,
for Elizabeth
*4
unlawful,,
subsequent
the
seizure was
outstanding.
The
not
Williams was
thereby, upon
and the evidence obtained
police
her two
had arrested
Hamilton
which Gatewood was
should!
days earlier,
under the
and had done so
gov-
excluded, except
have been
that the
though
did not
even
сhallenges
right
do so.
ernment
our
to
4(c)
physically in hand. Rule
have
says
question
It
the
the seized'
whether
(3),
of
Pro
Federal Rules
Criminal
properly
admissible
evidence was
is not
cedure,
of
18
Their execution
U.S.C.A.
us
not be
before
and therefore
authority
the war
of
exhausted the
it
rant,
argument
decided.
considered and
longer
no
which
thereafter
was
pretrial judge's
that a
of Gate-
is
denial
Landon,
outstanding.
v.
Carlson
41(e), Feder-
wood’s motion under Rule
96
72
L.
342 U.S.
Procedure,
sup-
Rules of
to
al
Criminal
thought
So,
if it
that
be
Ed.
press thе
and certain
heroin mixture
outstanding
warrant
arrest
of
evidence,
property
was
for use as
other
would have
somehow
by
judge
properly
trial
considered
the
entry
justified
unlawful
the otherwise
the law of the case which
was
apartment,
fancied
such
into Gatewood’s
follow;4
to
and that we cannot
bound
lacking
justification
An of
here.
was
ruling
judge’s
pretrial
of
review the
a warrant
belief that
ficer’s mistaken
admissibility
transcript of
a
because
outstanding
adequate
not an
sub
him
not made
before
wаs
for a warrant.
stitute
appeal.
part of
record on
illegality
action
of the officers’
Appellate consideration of the
aggravated by their
inexcusable
was
question in a
must
ultimate
case
ignorance
fact that the Williams
of thе
by
parties’
failure
frustrated
already
custody,
by
woman was
preliminary
include in the record
to
their
be-
of
the weakness
reality part
proceedings
were
which
lieving
apart-
in Gatewood’s
she
might
process,
which
of the trial
They
known for
week
had
mеnt.
significance.5
found to be
vital
had
been
or so that the bench
considering
So,
the case
before
September
and assumed
issued
submitted,
requested
we
re
September 27
it had
that on
prepare
transcript
porter
of the
They
action on
tоok drastic
executed.
hearing
rehearing
pretrial
on the
inquiring
assumption
without
that
and,
suppress
sponte,
sua
motion
made
headquarters. Had
in-
own
their
That
cases cited
3 Am.Jur. 213.
opinion.
Bee
judge
held
so
in his
4. The trial
ordinarily applies to
cases
rulе
criminal
D.C.D.C.1953,
Gatewood,
v.
United States
ones.
as well as to civil
Braverman v.
F.Supp.
also said if he were
440. He
109
317
S.
pretrial
orders, he
bound
case,
In
Ct.
police officers testified substantially actions at clearly It
as Panetta did at the trial. appeared accom- subter- plished Union the Western OLIPHANT breaking, fuge, by forcible followed true prior announcement without ATLANTIC COAST LINE R. CO. On to enter. desire officers’ cause No. 11764. judge ground, pretrial that clear Appeals suppress. States Court of denying motion to *5 erred District of Columbia Circuit. illegality was shown of the Argued Jan. 1954. clearly at than the trial more Decided Jan. 1954. hearings. ap- preliminary It then the peared, out, already pointed have as we only entered with- that the officers not announcing legal for first out admittance, being doing denied so and also thаt then out- was not
standing. was estab- latter fact remembered, by lished, it will messages teletype were first through brought light cross- Panetta’s the trial.
examination at necessary it to a decision Were hold, here, we be inclined to as we should case,
intimated in the Cefaratti 41(e) pretrial Rule denial
under supрress, in motion to made after Willcher, Washington, Mr. Arthur L. binding dictment, on the trial C., appellant. D. regardless But, judge judge.7 of which Faulkner, Washington, Mr. Robert R. ruling actually which evidence, admitted made the C., appellee. D. questioned it was error do so. EDGERTON, BAZELON, Before Judges. FAHY, Circuit Rеversed. Cefaratti, rights parties.’ may 6. States v. The motion See United U.S.App.D.C. 297, 301, trial; may bo renewed at then be granted; and if is then certiorari denied U.S. 73 S. denied and the defendant 97 L.Ed. at footnote denial Ct. appeal part on reviewed from the conviction.” which reads in thus: trial, “After indictment and before Gouled United denying motion order suppress defendant’s pages 312-313, appealable. 41 S.Ct. 65 Mid. final and not principle Cogen States, 221, 49 647. The there stated was v. United 278 U.S. adoption affected the later L.Ed. Such an order of Rule irreparable 41(e) is, think, controlling. and we still has no ‘final and effect