John E. Adams v. United States of America, Ernest J. Stuckey v. United States of America, Melvin R. Roots v. United StatesJohn E. Adams v. United States of America, Ernest J. Stuckey v. United States of America, Melvin R. Roots v. United States
- Reporters:
- Before:
- Burger
Lead Opinion
These three appeals are from convictions under a joint indictment founded upon the robbery of a liquor store. Two issues are common to each appeal. They are (1) the existence of probable cause for arrest and accompanying search, and (2) the admissibility of testimony of a police station identification made during a period of illegal detention in violation of
I
Appellants were arrested a few minutes after the police, at 1:40 P.M. on November 5, 1965, received a report of an attempted robbery of a North Carolina Avenue liquor store in the District of Columbia. They were taken from the point of arrest to the Robbery Squad offices at Police Headquarters. Arriving there at 2:00 P.M., they were put in several police line-ups during the next two hours. At 4:00 P.M. they were booked for the attempted robbery for which they were arrested, but there was no presentment to a magistrate on that charge that day. Remaining in custody, they were placed in several more police lineups between 4:00 P.M. and 8:00 or 9:00 that evening, and again the following morning between 8:30 and 10:00 A.M. It was in this latter series of exposures that they were identified by the owner of another liquor store, Whitaker’s Wines and Liquors, as the persons who had robbed his store four days earlier, that is to say, November 2, 1965. At 10:00 A.M. on November 6, 1965, they were presented to a magistrate on the charge for which they had been arrested and booked, namely, the attempted robbery of the North Carolina Avenue store. Prosecution of that charge was apparently not pressed, however, inasmuch as the convictions appealed from are based upon an indictment for the robbery of the Whitaker store.
No challenge was made to the complainant’s in-court identification of appellants, but a pre-trial motion was made to suppress testimony by Whitaker that he had first made an identification at the second day’s line-ups. A hearing was held, and it was urged upon the District Court, as here that the line-up identification was the fruit of a period of \ *576illegal detention because of “unnecessary delay” within the meaning of
In the first of such line-ups, which means at some point between 2:00 and 4:00 P.M., appellants were identified by a witness from the North Carolina Avenue store as the perpetrators of the attempted robbery there. Several more line-ups followed in which appellants were viewed by a number of complaining witnesses in other robberies. After two hours of this, appellants were booked for the attempted robbery for which they were arrested. Line-ups continued until 8:00 or 9:00 that evening. Kept at Police Headquarters overnight, line-ups were resumed the next morning, and more complaining witnesses in still more open cases were brought in. One of these was Whitaker, who identified appellants as the robbers of his store on November 2. Presentment of appellants to a magistrate was then made on the attempted robbery charge for which they had been arrested and booked the day before.
At the trial, Whitaker was first examined by the prosecution about the circumstances of the robbery. He was next asked to relate the fact of his identification of appellants at Police Headquarters eight months before. Only after this did he make an in-court identification.3 A police officer also recounted in detail Whitaker’s identification of appellants at Police Headquarters. It is the testimony as to the out-of-court identification that is at issue here.
II
The Government does not here contend that there was no violation of
Here, the lawful basis for appellants’ arrest and detention rested solely on the probable cause for the belief that they had committed an attempted robbery on November 5 at the North Carolina Avenue store. There was no probable cause to detain them under arrest for other matters.
It will not do to say that
On the precise facts shown by this record, we think the effect of
In these situations it is deemed a matter of overriding concern that effective sanctions be imposed against illegal arrest and detention and the risks of overreaching inherent in such action. Even though highly probative and seemingly trustworthy evidence is ex-*578eluded in the process, this loss is thought to be more than counterbalanced by the salutary effect of a forthright and comprehensive rule that illegal detention shall yield the prosecution no evidentiary advantage in building a case against the accused. All of this is bottomed on the Constitution itself. The Fourth Amendment makes protection of the individual against illegal seizure or arrest a constitutional imperative.
The concept of what is, in legal contemplation, a “divisible detention” is not, in our view, extraordinary.6 Indeed, it seems to be a necessary one if the subversion of the purposes of
Armed robberies of the kind here involved are rightly regarded as a grave threat to the peace and safety of the community, and the police are properly sensible of their responsibility to try to solve them. The police work here in respect of the robbery attempt was alert and effective, and we have given it scope by our ruling on probable cause. What we lack power to do is to give absolution in respect of what became, by reason of the
That effort not having been made here, we cannot adjudicate in this instance the propriety of such procedure;’ nor pronounce upon it in the abstract. It appears to be one of those areas where the police require skillful and imaginative legal planning, bottomed upon cooperative utilization, rather than utter disregard, of judicial power, and designed to achieve legitimate ends by means which have some appeal in terms of their concern for statutory and constitutional protections. What we do say is that, until that kind of effort has been made and established to be unavailing, we do not find an adequate substitute for it in barren reiteration of the proposition that the only way the police can function under
We emphasize that there is no question before us on this appeal as to the fact of a
Reversed and remanded for a new trial.
Notes
. Two of the appellants advance a due process objection to an in-court identification because of the conditions under which a police line-up was held. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). But this issue was not raised in the District Court, where the relevant facts could have been explored out of the presence of the jury, and the court could have made findings and conclusions as to whether there was a duo process violation, or an independent basis for the identification making any such violation harmless beyond a reasonable doubt. See Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The same appellants complain of the denial of motions for acquittal but we find no error in the trial judge’s conclusion that the evidence was such as to warrant submission to the jury. Appellant Stuckey alone presses certain other alleged errors in the course of the trial which we do not find persuasive.
. Although the police dispatch sent from the scene of the alleged attempted robbery was somewhat confusing, we think that the arresting officers, upon hearing it, had sufficient reason to believe that appellants had been involved in an attempted armed robbery. The validity of the arrest involved in this case is also sustained in the cases of Stuckey and Boots v. United States, Nos. 20648 and 20649, decided this day.
. We say there was an in-court identification, although it requires considerable effort to derive it from the record. This was apparently the consequence of the prosecutor’s preoccupation with proving the line-up identification, the importance of which he stressed in this response to the trial judge’s query as to how necessary it was to go into the matter of the line-up:
Usually in these cases, since the case now is in July, an identification made some three days after the robbery at headquarters I think is very important in so far as the jury is concerned. In other words, an identification in the courtroom I believe is not as important as one made three days after the event by the complainant.
. Lewis v. United States, 127 U.S.App.D.C. 269, 382 F.2d 817 (1967); Kennedy v. United States, 122 U.S.App.D.C. 291, 353 F.2d 462 (1965); Williams v. United States, 120 U.S.App.D.C. 244, 345 F.2d 733 (1965); Copeland v. United States, 120 U.S.App.D.C. 5, 343 F.2d 287 (1964) ; Mitchell v. United States, 114 U.S.App.D.C. 353, 316 F.2d 354 (1963); Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959).
. In Mallory only the admissibility of a confession was in issue, and what the Supreme Court said about exclusion can be - read solely with reference to that fact. But the policy of using an exclusionary rule as a deterrent to improper police conduct goes back to McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1942). Between McNabb and Mallory, but after the advent of
. Judge Youngdahl recognized this as long ago as 1961. In United States v. Meachum, D.C., 197 F.Supp. 803, the defendant was arrested for robbing one Turner. Prior to presentment a line-up was held for Turner’s benefit. When Turner proved unable to identify the defendant, the latter was not released but was kept in custody for more line-ups involving other robberies. At such a showing, another robbery victim identified him. Although this was followed by a confession which was the subject of a motion to suppress, Judge Youngdahl, assuming arguendo that there was probable cause for taking the defendant initially into custody, said:
Without deciding whether it was proper, under the rule, for a lineup to be held on the Turner charge, it was decidedly improper for preliminary proceedings on that charge to be delayed for a lineup and questioning about another charge for which no probable cause was or is now manifested and for which an arrest without a warrant has been made * * ^
Two of our cases resemble this one in that an initial custody for one crime was the avenue to indictment and conviction of another. In Payne v. United States, 111 U.S.App.D.C. 94, 294 F.2d 723, cert. denied, 368 U.S. 883, 82 S.Ct. 131, 7 L.Ed.2d 83 (1961), where the trial court itself refused to admit testimony of the kind at issue here, namely, the fact of the out-of-court identification, we expressed the gravest reservations about the practice of “lengthy detention for the purpose of rounding up complaining witnesses so that they may view a suspect” who is himself lawfully in custody by reason of an arrest on probable cause for one crime. These reservations were vigorously and expressly reaffirmed in Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666 (1963), although there even the initial arrest was found to be one for investigation.
. The trial in this case occurred after Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), thereby assuring appellants of the provision of the right to counsel at an early stage of their detention and certainly no later than presentment. That right now comprehends the opportunity to have counsel present at police line-ups to assure that they are held under conditions calculated to give a firm basis to any identifications made. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
Concurrence Opinion
(concurring) :
I concur without reservation in the result reached by the court in this case. I file this separate statement only to indicate that I have grave doubt that the notion of a “divisible arrest” is a fruitful concept and I fear it may tend to confuse the basic issue. Indeed, I do not know precisely what it means. I question that it is helpful to make tentative and ambiguous “probes” at a concept in an area where accepted words of art have well settled meaning.
To my mind, the importance of the investigation of crimes other than that for which the original arrest was made is not that there may be something resembling a’ new “arrest,” but that the period of “unnecessary delay” forbidden by
*580When we reach the question of whether testimony describing a lineup identification made during such unnecessary delay can be admitted at trial, the fact that the later investigation focuses on crimes other than that for which the accused was arrested does not serve as a distinguishing factor. I have difficulty believing the majority means that evidence as to lineup identifications made during unnecessary delay is admissible if it relates to the crime for which the accused was arrested but inadmissible when it relates to other crimes. If that is not the intended result, I suggest that there is no valid basis in this case for relying upon the fact that the investigation dealt with other crimes.
It is clear that opinions of this court dealing with the Mallory rule did not apply it in the lineup situation. See Copeland v. United States, 120 U.S.App.D.C. 5, 343 F.2d 287 (1964); Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959). But I do not agree that these cases are inapplicable here because there is a “secondary detention.” The reason our earlier holdings do not apply is that the Supreme Court’s decision in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), has made the underlying rationale of those cases irrelevant. As my concurring opinion in Williams v. United States, 120 U.S.App.D.C. 244, 247, 345 F.2d 733, 736 (1965), indicated, the reason for not applying Mallory to a lineup identification was that a lineup in the absence of counsel before Wade was a perfectly legitimate procedure, see Copeland v. United States, supra, and that Mallory was concerned with improper “interrogation.” It was natural for the cases following Mallory to concentrate on the exclusion of utterances, but not other forms of evidence. But Wade has changed this. Now that the right to counsel is an integral part of the lineup procedure, the warnings that are given at presentment and the opportunity to have counsel appointed are highly relevant to the lineup situation. See
To introduce the concept of a “divisible arrest” seems to me to divert us from the heart of the matter and I submit it has led the majority to rely on the absence of “probable cause” for this fictional “arrest” concerning the other crimes. Apparently—by- this the majority means that there is no probable cause for an arrest for these other crimes. At the same time the majority agrees that “police have, of course, a legitimate interest in seeking to explore the possible relationships between persons apprehended * * * and other crimes * * *.” But compliance with
The Supreme Court in Mallory was concerned not with the “probable cause” finding when dealing with delays in presentment, but with the judicial warnings of the presentment. These same warnings are relevant to the lineup situation in the present case. Once judicial warnings are given, I think there can be no doubt that the “legitimate interest” which the majority acknowledges the police have would warrant a magistrate in permiting the arrested person to be placed in lineups, subject of course to Wade requirements.
As I read the majority opinion, once there is a timely presentment, then