James E. FORD, Appellant, v. UNITED STATES of America, Appellee. George KIMBLE, Appellant, v. UNITED STATES of America, Appellee.
Nos. 17835, 17836.
United States Court of Appeals District of Columbia Circuit.
Argued June 15, 1965. Decided Aug. 24, 1965.
352 F.2d 927
Mr. Allan M. Palmer, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee.
Before BAZELON, Chief Judge, and FAHY, WASHINGTON, DANAHER, BURGER, WRIGHT, MCGOWAN, TAMM and LEVENTHAL, Circuit Judges, sitting en banc.
FAHY, Circuit Judge, with whom Chief Judge BAZELON and Circuit Judges WASHINGTON, DANAHER, BURGER, WRIGHT, MCGOWAN, TAMM, and LEVENTHAL join: Appellants were convicted of robbery in violation of
The facts as developed on the motion to suppress and at the hearing on the remand are that the robbery occurred at about 4:30 a. m. August 10, 1962, at a tourist home located in this city. Two men participated, one of whom used a pistol in aid of the robbery. A Miss Williams was required to open the money locker, from which one of the men took about $85. About ten minutes after it occurred Detective Harris and Officer Caldwell, of the Robbery Squad, responded to a report of the robbery. They were advised by one Winston, “a good informant of the police department,” and by a person named Dodson, that appellants had been in Winston‘s “place” shortly before the robbery and had asked Winston to accompany them on a “hustle.” Winston and Dodson also told the police that they saw both appellants running past Winston‘s place and through an alleyway at about the time of the robbery. The officers brought Miss Williams to Police Headquarters where she identified Kimble‘s picture from among a number of others shown to her. His photograph was also identified by Winston and Dodson. Early the next morning, August 11, the officers received a telephone call from Winston to the effect that appellants were then sitting in a Buiсk parked in front of Winston‘s house. The officers immediately went to the scene. When they arrived the Buick, with four occupants, was nearby but had been moved a block before arrival of the officers. They then arrested its occupants. Ford was in the driver‘s seat with Kimble sitting next to him. One of the officers removed a pistol, the questioned evidence, from the floorboard of the automobile where it rested on a white towel at Kimble‘s feet. The arrests occurred at about 7:55 a. m. At a lineup at about 9 a. m. Miss Williams identified both appellants as the robbers.
Therе is no doubt, and it is not seriously disputed, that there was probable cause for the arrests. If they were lawful the seizure of the pistol was also lawful, and the motion to suppress it as evidence was properly denied.
At the hearing on the remand the United States Attorney introduced no evidence and the defense called two witness
We find no case holding that a warrantless arrest in a public place for a felony, supported by probable cause, оffends the standard of validity prescribed by the
The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony * * *.
This statement, however, is followed in Carroll by the Court‘s explanation that the public safety and the due apprehension of criminals charged with heinous offenses required that such arrests be made “at once” without warrant. Such an “at once” reason for the rule would not preclude a requirement that a warrant be obtained when it is practicable to do so. But the Court has not established such a requirement as to arrests. It is true that the practicability test was applied to a warrantless search and seizure in Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), over the dissent of Chief Justice Vinson, for himself and Justices Black, Reed and Burton, finding the search lawful as incidental to a lawful arrest. And in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), Trupiano was overruled to the extent that it “requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search aftеr a lawful arrest.” 339 U.S. at 66, 70 S.Ct. at 435.
In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), Toy‘s arrest was held invalid only because not supported by probable cause or “reasonable grounds,” not because a warrant had not been obtained. As in Draper the provisions of
While I join the Court‘s opinion I do so because nothing the Court holds is inconsistent with my belief that there having been time to get a warrant, probable cause alone could not have justified the arrest of petitioner Toy without a warrant.
371 U.S. at 497, 83 S.Ct. at 422. This view was not expressed by the Court.
The practicability test is also absent from our own decisions. Mills v. United States, 90 U.S.App.D.C. 365, 196 F.2d 600, cert. denied, 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643 (1952); Willis v. United States, 106 U.S.App.D.C. 211, 271 F.2d 477, cert. denied, 362 U.S. 964, 80 S.Ct. 881, 4 L.Ed.2d 879 (1960); Stephens v. United States, 106 U.S.App.D.C. 249, 250, 271 F.2d 832, 833 (1959), where Judge Bazelon said:
The District of Columbia follows the common law rule that a law officer may arrest without a warrant if * * * there is probable cause to believe that a felony has been committed and that the arrested person committed it * * *.
And see Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751, cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958). Similar cases in other courts, federal and State, are legion.
In Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666 (1963), the invalidity of Gatlin‘s arrest was lack of probable cause; and the arrest of Miller, a co-defendant, was also held to be unsupported by probable cause. There is, however, a discussion in footnote 10 in Gatlin of the failure of the officers in arresting Miller to obtain an arrest warrant. We commented that the officers,
failed to place their information before a “neutral and detached mаgistrate” who obviously is in a better position to determine probable cause than an “officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) * * * This failure alone, absent exceptional circumstances, may be sufficient to invalidate this arrest.
The arrest thus referred to was in the attic of a home which had been entered and was being searched by officers without either an arrest or search warrant. And each case we cited involved either search of a home or of occupied premises аpart from an arrest or, as in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367 (1948), search of a home intermingled with an arrest. These situations raise different questions from those involved in an arrest alone. Probable cause is not ordinarily sufficient under the reasonableness test of the Fourth Amendment to support search of a home without a search warrant. Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4 (1925); Jones v. United States, 357 U.S. 493, 497-498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958), citing as closely relevant, Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932), and Johnson v. United States, supra. It was such a search, to be distinguished from an arrest in a public place for felony, that evoked the often-quoted language
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement thе support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.3
Any assumption that evidence sufficient to support a magistrate‘s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people‘s homes securе only in the discretion of police officers.
333 U.S. at 13-14, 68 S.Ct. at 369.7
The
to protect the arresting officer and to deprive the prisoner of potential means of escape, Closson v. Morrison, 47 N.H. 482, and, secondly, to avoid destruction of evidence by the arrested person. * * * From this it follows that officers may search аnd seize not only the things physically on the person arrested, but those within his immediate physical control,
but not, it was protested, the whole premises where the arrest occurs.8 The dissenting Justices, however, recognized the well settled exception rooted in necessity, illustrated by Carroll v. United States, supra, 267 U.S. at 153, 45 S.Ct. 28 (1925), which sanctioned a warrantless search and seizure of a vehicle on the ground that “it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”
In cases where the securing of a warrant is reasonably practicable, it must be used,
was in the context of a search and seizure of a vehicle.9 And in McDonald v. United States, supra, the arrest upon which the search hinged was held unlawful and not to justify search and seizures in the home, not because the arrest was warrantless but because it grew out of an unlawful breaking into the home. Mr. Justice Jackson stated:
Having forced an entry without either a search warrant or an arrest warrant to justify it, the felonious character of their entry, it seems to me, followed every step of their journey inside the house and tainted its fruits with illegality. Cf. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341 (1914); Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466 (1932); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367 (1948).
335 U.S. at 459, 69 S.Ct. at 195 (1948).
There thus appears in the law a difference, on the one hand, in what is considered reasonable and therefore necessary to justify a search and seizure in a home or occupied premises, from what, on the other hand, is reasonable and sufficient to justify a felony arrest in a public place. A warrant has not been required for the latter if there is probable cause, though it may have been practicable to obtain a warrant. This difference is not only reflected in decisional law. It gains support from statutes explicitly authorizing warrantless arrests on probable cause, statutes which hаve been relied upon by the Supreme Court, thus implicitly recognizing their constitutionality. We have already referred to
The members of the Board of Commissioners, and of the police force, shall possess in every part of the District all of the common-law powers of constables * * *
At common law a constable could arrest without warrant one whom he had reason to suspect had committed a felony, and we are aware of no statute in modification of that rule in this jurisdiction.
And see
It is interesting to note in passing that the Fourth Amendment does not use the word “arrest.” The Framers were primarily concerned with the security of persons, houses, papers and effects from searches, and seizures resulting from searches. This appears from the language of the Amendment. The main thrust was directed at the invasion of privacy through general warrants of assistance and lettres de cachet. See dissenting opinion of Mr. Justice Frankfurter in Harris v. United States, 331 U.S. 145, 155, 67 S.Ct. 1098 (1947), and of Mr. Justice Douglas in Draper v. United States, 358 U.S. 307, 314, 79 S.Ct. 329 (1959). It is not surprising, therefore, that historical support is advanced by the United States for the proposition that the common law, which, prior to the Bill of Rights, recognized the validity of a warrantless arrest for felony, even though not committed in the presence of the arresting official, was not intended by the Framers to be disturbed. And see Trupiano v. United States, 334 U.S. at 713, 68 S.Ct. 1229 (1948) (dissenting opinion of Chief Justice Vinson); United States v. Hall, 348 F.2d 837 (2d Cir. 1965).
The protection of the Amendment, however, whatever may be thought
However, the practice of arresting without a warrant when it is practicable to obtain one is not to be encouraged. On the contrary. In a doubtful or marginal case of probable cause an arrest may be sustainable on a warrant where without one it would fall.10 And in any event the intervention whenever practicable of the independent judgment of a magistrate should be sought. We hold, however, that the Constitution did not require the securing of warrants for the arrests of appellants.
We come now to consider whether in the exercise of our supervisory jurisdiction we should adopt a rule, not required by the Fourth Amendment, that a felony arrest on probable cause, without a warrant, will not be deemed valid if it were practicable to obtain a warrant. We think the existing situation does not call for the adoption of such a rule. In so deciding we consider several factors. The conduct of the officers here, as Judge Pine stated on the remand, see note 3, supra, was not unreasonable or oppressive.11 Cf. Lopez v. United States, 373 U.S. 427, 440, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). Probable cause for the arrests was strong, and when appellants’ whereabouts was learned it was sensible for the officers to proceed immediately with the arrests. Moreover, Congressional enactments to which we have referred authorize warrantless arrests on probable cause. These are at least some deterrence to the adoption by us of an inconsistent rule. Additionally, we have Rule 5, Fed.R.Crim.P. It requires a person arrested to be taken before a magistrate without unnecessary delay for determination of the issue of probable cause.12 The Supreme Court has given life to this Rule by excluding at the trial evidence obtained by its violation. Compliance with Rule 5(a), with the accompanying exclusionary rule, tends to lessen any untoward consequences in this jurisdiction of warrantless arrests. This argues against the exercise now of our supervisory authority to invalidate the arrests in this case. That authority, of course, continues to remain available if we ever become persuaded that a practice of not getting warrants, even though practicable to do so, was resulting in a significant number of unreasonable arrests, inflicting an injustice upon the immediate victims as well as a strain upon the judicial machinery.
We have considered other contentions advanced and find no reversible error.
Affirmed.
J. SKELLY WRIGHT, Circuit Judge (concurring):
The Fourth Amendment, of course, protects the person against illegal arrest as
When a police officer has evidence which he deems to be probable cause for the search, he must place that evidence before a judicial officer who will make that judgment. The security of property is not left to the judgment of a police officer “engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, supra Note 1, 333 U.S. at 14, 68 S.Ct. at 369.
With reference to the protection of persons from illegal arrest and subsequent search pursuant thereto, not only of their persons but of thеir immediate surroundings, it has been held that state law determines the validity of arrests without warrant. Johnson v. United States, supra Note 1, 333 U.S. at 15 n. 5, 68 S.Ct. 367; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Most states follow the old common law principle that a police officer may make a valid arrest without a warrant for a misdemeanor or a felony committed in his presence and for a felony not committed in his presence where he has probable cause to believe that a felony has been committed and that the person arrested committed it.2
Currently there appears to be a certain amount of uneasiness with this dichotomy bеtween search and arrest. The Supreme Court, in Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), held that the issuance of an arrest warrant under Rules 3 and 4,
“These contentions, if open to the Government here, would confront us with a grave constitutiоnal question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been
sought, is consistent with the Fourth Amendment. * * *”
This court has several times ruled on the Jones situation and has held that such arrests are illegal in the District of Columbia. Morrison v. United States, 104 U.S.App.D.C. 352, 357, 262 F.2d 449, 454 (1958); Accarino v. United States, 85 U.S.App.D.C. 394, 402, 179 F.2d 456, 464 (1949); cf. District of Columbia v. Little, 85 U.S.App.D.C. 242, 246, 178 F.2d 13, 17, 13 A.L.R.2d 954 (1949), affirmed on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950). And in Gatlin v. United States, 117 U.S.App.D.C. 123, 128 n. 10, 326 F.2d 666, 671 n. 10 (1963), we said: “The police here, as in Wong Sun [v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)], acted without an arrest warrant. Thus they failed to place their information before a ‘neutral and detached magistrate’ who obviously is in a better position to determine probablе cause than an ‘officer engaged in the often competitive enterprise of ferreting out crime.’ Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). This failure alone, absent exceptional circumstances, may be sufficient to invalidate this arrest. [Citing cases.]”
Thus we see, as the dissents in Giordenello, 357 U.S. at 489-492, 78 S.Ct. 1245, and Jones, 357 U.S. at 500-503, 78 S.Ct. 1253, clearly indicate,4 the law with reference to the necessity of arrest warrants is in a state of flux with change possibly impending. This change would, of course, eliminate some of the problems which now arise from warrantless arrests followed by interrogation of the accused. For example, if probable cause for arrest were just established befоre a judicial officer, there would be no occasion for attempting to have the arrestee provide additional evidence of probable cause prior to being brought before the Commissioner. See Rule 5(c),
The trial court here held that, after obtaining information amounting to what they considered probable cause for the arrest of appellants, it would have been practicable for the рolice to obtain arrest
In the present state of the law this ruling was undoubtedly correct. Nevertheless, I have no doubt that before too long personal liberty will be accorded the same protection under the Fourth Amendment as the ownership and possession of property now enjoy. See Barrett, Personal Rights, Property Rights, and the Fourth Amendment, in 1960 SUPREME COURT REVIEW 46.
Norvin G. MALONEY, Jr., Appellant, v. E. I. DU PONT de NEMOURS & CO., Inc., Appellee.
Nos. 18454, 18874.
United States Court of Appeals District of Columbia Circuit.
Argued March 15, 1965. Decided June 10, 1965. Appellant‘s Motion fоr Rehearing Denied Oct. 5, 1965. Appellee‘s Petition for Rehearing En Banc and/or for Rehearing by the Division in 18454 Denied Oct. 5, 1965.
Notes
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. See also Mr. Justice Douglas, concurring, in Wong Sun v. United States, 371 U.S. 471, 497-498, 83 S.Ct. 407, 422 (1963):
“While I join the Court‘s opinion I do so because nothing the Court holds is inconsistent with my belief that there having been time to get a warrant, probable cause alone could not have justified the arrest of petitioner Toy without a warrant.
“I adhere to the views I expressed in Jones v. United States, 362 U.S. 257, 273, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). What I said in the Jones case had been earlier stated by Mr. Justice Jackson, writing for the Court in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367 (another narcotics case):
“‘The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring thаt those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate‘s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people‘s homes secure only in the discretion of police officers.’ Pp. 13-14, 68 S.Ct. p. 369. And see Chapman v. United States, 365 U.S. 610, 615-616, 81 S.Ct. 776.
“The Court finds it unnecessary to reach that constitutional question. I mention it only to reiterate that the Johnson case represents the law and is in no way eroded by what we fail to decide today.”