Lewis L. Wayne v. United States

con- Our examination the record that, held the District vinces us Judge, properly qualified the witness was evidence, by the and that his if believed (as jury apparently was), suf- was prove ficient value in excess $100.00. judgment follows that District Court must be and Affirmed. Washington, Gordon, D.

Mr. Bernard appel- (appointed court), for

C. lant. WAYNE, Appellant, Lewis L. Devlin, D. Asst. U. S. Mr. Robert Atty., C. Ache- Messrs. whom David America, UNITED STATES of Q. Atty., son, Nebeker U. and Frank S. Appellee. Attys., Pryor, U. S. C. Asst. and William No. 16709. appellee. brief, Appeals United States Court of Judge, and Chief Bazelon, Before District of Columbia Circuit. Circuit Bastían, K. Miller Wilbur Argued Nov. Judges. April Decided Rehearing PER CURIAM. Banc Petition for En Denied May 1, En Banc indicted, Appellant tried and con- larceny. charge grand victed on only appeal is point raised on this set, the the value of a television subject charge, shown to was not that, over,1 and $100.00 appellant only consequently, should petit the crime of been convicted of larceny D.C.Code [Title § (1961)].

Appellant claims that Gov- value, as to

ernment witness who testified manager of the Philco

and who was from which the television set

showroom qualified stolen, ex- as an value; that, therefore, pert as to not sufficient evidence of

there was value the set to conviction grand larceny. of the crime of savoring things including upward, (1961) : 1. Title D.C.Code imprisonment larceny. realty, for not suffer shall “Grand Whoever shall fe years.” carry away ten loniously anything one nor more than than less take and $100 or value of value of the amount Henry Johnson, Jr., Mr. Lincoln Wash- ington, C.,D. Mr. P. whom Curtis Mitchell, Washington, C., on the D. brief, appellant. for Barry Fredericks, Mr. I. U. S. Asst. Atty., with whom Messrs. David C. Acheson, Q. Nebeker, Atty., U. S. Frank Atty., Asst. U. S. Mc- and Arthur J. Laughlin, Atty., Asst. U. the time S. filed, brief, the record was were on the appellee. for Messrs. Nathan Paulson J. Schmertz, Jr., and John R. U. Asst. S. Attys., filed, at the time the record was appearances appellee. also entered for Washington Before Edgerton, Judges. Circuit Burger, Judge. BURGER, Circuit Appellant counts, was indicted on two attempted the first terminating for an abortion death, and the second attempted jury, abortion. Tried before a presented he evidence and was found guilty count. He was second imprisonment period sentenced a years. 2 to 6 District ex- cluded as evidence certain medications inducing claimed to be means of ruling prior abortion under in a trial1 that these items were “fruit” anof un- policy lawful due to failure an- entry. nounce the of their Our disposition require complete will a more point. discussion of this issue at later following summary of undis- Dickerson, puted facts: Jean the de- attempted abortion, victim of an ceased regular absented herself from her employment as a schoolteacher and from regular place of her residence for a week due to an undisclosed “illness.” The appel- and her sister called at decedent purpose making for the lant’s residence arrangements per- to have an abortion Judge granted Appellant originally charged new trial due to triet bis own view that his instructions degree for second tried murder and at erroneous, tempted juryA because of an inad- abortion. returned a ver have been guilty manslaughter. reference to dict on both counts. The Dis- vertent pre-trial preg- On offered in decedent, who was on the formed hearing, made reference will be to which They returned unmarried. nant and granted currency. later, District Court carrying day $400 next suppress motion the medication present, sister While decedent’s Watson, container, its and the cash found appellant’s Portia co-defendant ruling apartment. appeal from that all No severance, granted made who was physical government. was available to the Carroll arrangements abortion v. United 77 S.Ct. request. There procedures appellant’s at (1957). 1 L.Ed.2d 1442 The record testimony appellant instructed that was ruling pre-trial makes it clear that the up” and that him to “set Watson Portia was based on Miller v. United reported she shortly that she thereafter 357 U.S. 2 L.Ed.2d aas Appellant’s license had done so. physician (1958) and that the District Court previously revoked. considered the command of Title appellant testimony that showed The U.S.C. 3109 as § absolute in all circum- into some substance carried a tube of government argued stances. The that had been taken room where decedent exceptions there were com- to literal stating she, that returned and “patient,” pliance but did not elaborate on this having “good reactions.” was claim. Hearing groans from the bedroom soon review, At the second trial now under this, appellant returned to the bed after appellant objected any evidence re- emerged my saying “Oh room and later lating body girl, of the deceased point God, I she’s dead.” At this believe claiming ruling that the favorable decedent’s sister said she tried the other evidence, e., i. the tube physical apartment but Portia Watson leave box, medication and outer and im- trying girl, cried out “Catch that she’s pounded cash, also controlled all as to get door was barred two out.” The entering other evidence found on prevented from and she was locks2 room, e., body. i. the victim’s leaving. sister was Later the decedent’s autopsy report expert opinion as to pursued escape but Portia able to death, being dependent cause of upon Watson, the woman’s coat off who tore body, challenged examination of the are Evading flight. prevent in her effort illegal entry. as “fruit” Essentially of an pursuit, who the sister contacted a friend body his claim that the victim’s police. called the subject suppress. to motion to See testimony is reached Police Killough States, D.C.Cir., appellant’s apartment in re- the door of U.S.App.D.C. F.2d emergency call, sponse to the knocked entry.2 requested The District “Police” and second called trial out testimony ruled occupants response. Deputy made no Re- of the knocking autopsy produced response. Coroner based on peated no his was admis- during expert testimony minutes, sible. The approximately 10 of the After Deputy Coroner, Whelton, per- Dr. interval the decedent’s sister re- who scene, autopsy required by formed the offleial the caretaker was turned to law,4 (a) keys produce established master on to but deceased called pregnant; foreign developed double locks had been in- sub- body stances introduced into her then broke down the stalled. probable death; ap- (c) cause Inside and entered. found door physical Henry there were and one pellant, Portia Watson of an manifestations attempted Johnson, appellant’s attorney. Jr., abortion. Lincoln Compare attorney may explain why the caretaker 2. This pre-trial open motion, from Johnson at the discussed the door the outside request. opinion. later D.C.Code Ann. 11-1203 mony by fled the Appellant’s the sister that as she Contentions large quantity of she saw a urged for reversal. are Three claims money table;5 (d) paper medical on a attempting restate Rather than recently evidence consistent with a at them, reproducing we characterize tempted abortion; (e) opportunity of brief: them verbatim act, appellant in to commit the “1. Is sufficient evidence cluding personal direct with the contact upon acquittal motion for survive a just decedent before her death in a room charge attempted abortion control; (f) which was under is adduced where evidence “good appellant discussed the decedent’s an abortifacient or instru- use of ment, reactions” to some medica treatment or undertaking perform administered; (g) tion he had forcible abortion, of medi- in the absence flight prevent efforts to of decedent’s lay opinion an abortion cal or appellant sister when said he “believed” opin- attempted, upon was medical the victim was dead. All un was this merely with consistent ion which contradicted. The evidence at the time with other some but inconsistent acquittal clearly pre of the motion for permissible evidence and inferences jury question. sented a Thomas v. of innocence U.S.App.D.C. 392, 211 charge “2. Is the trial court 45, denied, F.2d cert. 347 U.S. erroneous so as merit reversal Curley (1954); L.Ed. only it reviews where the evidence U.S.App.D.C. guilt and with inferences consistent denied, 160 F.2d cert. ignores totally testimony 91 L.Ed. 1850 reasonably permissible inferences innocence, and is consistent (2) perceptibly otherwise adverse to a carefully We have examined testify defendant who elects not'to challenged charge portion of the con “3. Is from an evidence secured taining discussion in of the evidence autopsy performed the coroner on light appellant’s claim that was body possession of which was against prejudicial. “slanted” him and during the obtained course of an any However, phase examination of this illegal search and constitu- seizure charge of the must take account into tionally entry available after of an the evidence came from but one all suppression order of and over ob- right’ side, for the accused exercised his jection.” to remain silent and tendered no other degree, witnesses. To a it was inherent (1) any discussion of the evidence that acquittal The motion for was it would tend to be a discussion of the properly government’s denied. The evidence of the However, evidence. attempted jury very abortion which carefully resulted in the was instructed on was, course, right death proof victim’s not that pass the burden of and its eyewitness. credibility, of an could, obviously, On record this which on circum these apply only have been prosecution could stances appellant or his co-defendant jury Portia witnesses. At the close the qualify eyewit again Watson who instructed that if its “recollection They testify. testimony any did not respect nesses. The of the differs (a) prosecution’s summary” given by evidence showed from the the court pregnant, girl; your govern.” death of unmarried “it is recollection that must thought hardly evidence she had carried right $400 It can appellant’s apartment; (c) judge cash to testi- a trial to restate or summarize pre-trial suppression 5. Under order returned to Portia Watson who money, by police, this which was seized claimed it. appears stand to us that the circum- It frustrated can be the evidence Wong for ad Sun call ards set forth offer failure to a defendant’s scribed testimony. coroner’s' mission merit in no We find evidence. undisputed sister that the deceased’s claim. advanced on contentions police, prior their told the (3) apartment, her into seeking entry one sister was there. No will (a) Appellant’s contention third “knew” she was dead as a fact that parts. The contention in two be treated right had a assume it was a one into of the is that the apartment, dying “body,” or uncon rather than a found had been thought. person, scious as the pre-trial motion District Accordingly, clear that this informa it is illegal, the seizure of have been body source, independent tion came from an following immediately such reasonably and it cannot be said that the entry, precluded the introduction evidence embodied in the coroner’s testi mony about condition coroner’s “by acquired exploitation of body of death. and the cause illegality,” Maguire, see [the] commonlyknown invoked is doctrine regarded supra, or that it can be poisonous tree.” “fruit of the as the “gained by the Government’s own finding challenges government the wrong,” Silverthorne, supra, at 251 U.S. argues entry that the 392, 40 S.Ct. 183. It was inevitable was, that, did not if it even further that, ap even had the not entered testifying. preclude the coroner pellant’s apartment time and in at the legal reaching the now Without they did, the manner coroner the gov agree ity entry, with the we of the by sooner or later have been advised the that, circumstances of ernment the by reported of the information the testimony objected case, to the this sister,6 body, would have obtained the “fruit of not be considered as the post and would have conducted the poisonous Supreme Court tree.” The prescribed by mortem examination law. recently had occasion to discuss has (1961). See D.C.Code Ann. Thus, 11-1203 § Wong clarify doctrine. Sun this difficult necessary causal relation be 471, 371 U.S. v. United illegal activity tween the and the evi (1963). It 9 L.Ed.2d 441 stated sought lacking dence to be excluded is exclusionary appli rule has no that the case. in this government obtains evi when cation Judge WASHINGTON considers that independent dence “from source.” preceding pages in the the discussion am- Silverthorne Lumber Co. States, justifies ply the admission of coron- 251 U.S. testimony, and that it is not er’s sary neces- added 64 L.Ed. 319 The Court pass upon legality for us of question applying that the to be asked in reviewability entry, “ of the granting ‘whether, doctrine is (or order, not) pre-trial or the need illegality, primary establishment of hearings the case for further to remand ob the evidence to which the instant entry. of the the circumstances Ac- on cordingly, jection is made has been come at discussion which follows exploitation illegality of that or instead my own views. reflects WASH- sufficiently distinguishable means opinion up in this concurs INGTON primary purged Ma be of the taint.’ point, in the affirmance and concurs guire, Guilt, (1959).” Evidence of conviction. of the Wong States, supra, Sun United v. basis (Emphasis an alternative There is U.S. at 83 S.Ct. at added.) District Court of the action 12, p. XXIV, 33, Chapter 104a Regulations p. Section 6. Rules and of the Metro- 1948). politan Police, Chapter II, (eff. Nov. Section Brennan Justice ment was hearing breaks present purposes the that Lincoln noted the officers based nounced under provisions rant must be pliance U.S.C. § Coroner admitting reveal holding for judge failure exceptional that an tions could be and That alternative tion. tended to sidering opinion, develop suggested their forcible compliance old.7 Semayne’s open doors of his The comments validity seeking entry. Supreme the forcible announced but on an evaluation Commenting requirement of notice of the statement assumed that he saw coming, Brennan with of Miller v. United this entry becomes ain Johnson, Jr., can, “Police” but continued: support the he illegal. have been of 3109 to the circumstances Case announce with § of who testified argument holding “ought § carried out § for search without * * Court testimony pre-trial made. and to pointed basis is my pertinent. Before that entry pre-trial order The facts pre-trial on the Rather more than 350 3109 but failed testimony view, have their and that their government’s posi- of the purpose rendered utterances described not their and before an officer exceptions to the is signify make out violation into ruling strictly in com- pre-trial of not new. The excused it should States, credibility be the admitted did identity review, command of in the Miller Mr. Justice prosecution judge relating case. request sustained. no authority the cause not roots, as pre-trial pre-trial Deputy a war- Henry ruling apart- excep- supra, literal judge years point now, part that con- For an- be ment makes pliance.” ence careful to urgent to the would be stances Court has justification harm, purpose, the facts known to officers proposed and in the American Law arrest is warrant, thorized felony are some state decisions ists ernment knows their dence. nouncement would be a useless one good dure, example, Arrest certain that omitted.) L.Rev. fleeing In the 310, 78 S.Ct. at 1195-1196. gesture. out an Cal.2d (Footnotes omitted.)” Miller v. ^[*] warranted, point of within are in faith need may arise where because of an Read v. 294 P.2d exigent circumstances, as, for a “useless Without without circumstances Miller People Maddox, 28. It Unless 3109 said, in (cid:127)» point here express to be when the officers person or Code of Criminal attempting Cf. believe that no or because announcement 290 P.2d make an arrest utter purpose when them in claim concedes, ^[*] People Martin, Case, opinion out that “The Govern- 357 U.S. at made § applies, assuming a warrant. noncompliance ex- gesture,” literal com- petitioner Warrant, announcement absurdity what officers here ^[*] peril so being 855; Wilgus, Conn. is excusing whether holding destroy that an arrested virtue that, with- to be (Footnotes of Institute’s that circum- ^[*] 46 Cal.2d virtually 22 Mich. or some- Court was the courts may already Supreme Proce- bodily There applied Gov- evi- -X- exist- au- an- com- always is pliance re- § requirement stated “The say this is to do no quired. To more than Semayne’s obtains. It is Case still axiomatic—that the repeat law what 3109, in in 18 U.S.C. § reflected gestures.” require “useless large does number statutes Eng.Repr. 91a, Co.Rep. Case, Semayne’s 11 E.R.C. trying get knocking. background Against I turn to in or was this who appellant of the facts Johnson admitted he knew more detailed examination leading prior entry, up facts known event and defended to the had police, the occu- him in he known to other abortion cases. He said facts urged thought by- knocking pants of which are all continued exigent showing government situa- about minutes. 3% excusing compliance with literal tion police police A officertestified that § message cruiser a radio that received person there “an in- was unconscious Henry Johnson, Jr., the attor- Lincoln apartment 614 of Ave- the Rhode Island apartment, ney was in the who found Plaza,” they responded nue once pre-trial he motion that testified on and found that number apartment after de- was called to the wrong was person and no unconscious girl’s fled; saw that he ceased sister 614; they was in to- were directed collapse” appellant “in a lying state apartment occupied by as an bed. While there a woman on a doctor. said There knocked Johnson said arrived and before repeatedly and identified themselves calling a there was conversation about in a “loud officers voice.” Other indicating undertaker, doctor or an thus officers from a cruiser second knocking while that even joined Testimony them. was of officers certainty the the door did not break in until about He testified he woman dead. knocking calling 10 minutes after by appellant either informed “Police.” Watson, had tried “the latter Portia government free, course, girl stop the victim] [sister pre-trial ruling attack the away leaving broke that she but entry by police forcible was a violation condition and ran out in an excited 18 U.S.C. 3109 since first this is the place” minutes 15 or 20 before from the opportunity point. girl has had to raise the he arrived. He conceded States, supra. Carroll v. United The- “against Watson’s will.” Portia left government’s (a) contentions are he heard voices Johnson testified exigency justifying existed outside the “some commotion” door without a door; warrant knocking because the officers told at he only report had a of an “unconscious police came let “if the to Portia Watson woman” and that a they they statement of who were in if announced them imperative they was not because un He also and what wanted.” testi- der all the circumstances knocking tempo it would have in “the increased fied gesture.” a been “useless Miller v. Unit on in.” and then door broke Johnson States, supra, ed 357 U.S. at police he heard no one announce said 1195-1196; People Martin, 78 S.Ct. at He he was door. testified Wilgus, 45 Cal.2d 290 P.2d 855. apartment See approximately 12 in the Warrant, Arrest a Without police Mich.L. before arrived. said minutes He Rev. suspect people he did not out- might police exigent door “I appraisal side the be and circumstances any surrounding think there was didn’t occasion for execution of search war- * * * police. I didn’t have the rants or forcible entries a search without slightest police idea presents warrant difficult and delicate problems. connection with it.” However These cases do not arise in passed police he conceded that he a pervades calm a courtroom standing driveway library. They rarely cruiser in the by as he are if ever seen except entered “which I in didn’t courts cases where criminal anything.” activity with connect He open by also said has been uncovered the chal- trying lenged police They he heard someone to the door actions. are not mat- key by with a but did ask not who was ters resolved meditation and reflee- fire already suggested, aof evidence events have participants. tion of the gas public escaping emotion-charged, would warrant filled or of likely are to be by any authority means by available to enter frequently tension, attended and response Constitution, prompt to if there was not a grave Neither risks. entry knocking. be an That made such judicial statutes or decisions we here intrusion is undoubted but sense. an absolute the home inviolable in balancing and of interests Collectively they reach the surrounded policemen, protec- firemen or other needs. When great protection but home with public with evi- by officers are confronted qualified the needs tion which is prudent society. liberty dence which would lead a ordered in a civilized to act reasonable protect to see a need to official Breaking home force is into a property, author- life or illegal circum- if it is reasonable information, if even ized ultimately act to on controlling a stances. The standards need We found erroneous. breaking warrant are those in without a not resort to such § prescribed Miller v. United entry in those circumstances. States, supra. re- a warrant is not But potential author- Here two streams quired a down door enter break a ity point exist burning occupants or rescue home to merge. arrived When the first shooting extinguish fire, prevent report on the scene bring injured emergency or to person. aid to an point At a an “unconscious woman.” preserve protect The need to victim’s sister arrived there after the may justifica- injury or avoid life serious grounds developed well have for what otherwise tion would be emergency, e., other a civil i. than exigency emergency. Fires absent or reported grounds reasonable a criminal believe or dead bodies are apartment. act had been committed in the cranks where no fires or bodies are to confusing partly because record is Acting response reports found. of this kind is filled with con- situation bodies,” police may of “dead find the ambiguity. If could ex- fusion and we drunks, “bodies” to be common diabetics pect patrolmen cruisers shock, patients. or distressed cardiac pinpoint would be able to the instant policemen But business of and fire- treating they stopped civil when this as a act, speculate men is to or medi- began emergency, they did, if think- report tate on whether the correct. ing terms, of it in criminal we would People emergencies could well die in asking resolve, pressure under them act tried to with the calm delibera- minutes, most and deli- subtle judicial process. tion with the associated legal problem cate and constitutional apparently Even the dead often are saved which, demonstrate, judges we now police response. myriad swift A of agree study cannot after months of fall circumstances could within the terms deliberation. “exigent circumstances” referred to States, supra, g., Miller v. police e. if we assume that Even coming smoke door, out a window or under a pursuant emergency, to a civil can it gunfire house, thought the sound they of in a that what find inside through threats the inside to police, suppressed? say shoot to be Are we to is grounds the door at may reasonable police apply firemen or enter to a injured seriously per- to believe an or tourniquet resuscitator, ill example, or for being son is held within. may not act on evidence of a but crime they incidentally then observe which Section enters this case because without search? appellant successfully the moved in the police suppress instant case District Court the received to evidence. In a But which, true, compliance only report if reasonable with 3109 is not the mind authority by indicating police than one view as other source which could could emergency, cruising lawfully grave private quarters. po- for enter the- As I a thought might report dead. With he then on a check to instructed lice were him in was the woman aided the who not him could woman” and “unconscious of an By performed. criminal acts an unusual Even was dead. the woman assume although appellant, sequence of events the vic- said had not doctor “disbarred” collapse by thought as in described a state he dead, but that fact tim was arranged attorney, had to have that at indeed response was Police dead. she was torney present. can do no more a We than paused have were swift speculate as what went on “uncon- risk that warrant with attorney mind of that pounding papers might he a heard while die woman” scious surely at the door within merit minutes aft being could drawn were police standing er he had seen a cruiser censure. doorway at the as he entered the build en- place to be door of a at the Once ing. There is no adequate explanation indeed the law or arrest search tered for why an officer of the courts would fail identity police their state commands police, purpose to admit the since the shows, be- the record purpose. Here prolonged knocking their with “increas pounding police dispute, yond ing tempo,” to words, surely use his own demanding entry what with door lawyer not have experienc eluded a lawyer own ed in such matters.9 he Whether advised beyond “increasing tempo.” called entry, laying his client refuse thus a occupant has house question of a arguments foundation for entry. right why seek to know urge upon he was personally us, later futile, require use- does not But the law analysis cannot we know. But of these stating things to be done. If less except: facts can lead no conclusions occupant purpose to the (a) appellant occupants and other knew gesture”8 have been a would “useless purpose identity well as of those obviously will make an common law demanding entry; occupants all telling exception dispense with sense adequate opportunity than more to ask occupant already .an what he knows. We police purpose indeed did not case must therefore ask whether it; (c) dying know a dead or with woman by police check- statement “We room, adjacent appellant, anin aas form ing dying report dead, or uncon- physician, presumed er must be a “use- scious woman” have been duty it was his known affirmative to re gesture” less or the other whether on emergency port a death seek reasonably for to called hand that death; (d) aid if there was as to doubt appellant opportunity ad- an allow present attorney latter at short, question police.’ mit In police pur must have least known the occupants whether knew pose. presence and their reason logic escape see no from the can I entry. desiring argument po- the Government’s right duty To answer this we to look to the need as- lice had a —if —to (cid:127)setting prolonged that, mo reply and the circumstances of the absent a sume occupants room knocking, (a) ment. In the was a “disbarred” n doctorwho attempted leaving unconscious, performed dying, fled perform patient person an abortion the oc- to on a who alone that or dead may 8. have been Miller then e officers th engaged search for L.Ed.2d in the fruitless wrong woman” “unconscious apartment. conduct of Otherwise lawyer presence apart of a in the Ap question. attorney now is not an ment is relevant to evaluation of the indicated, inquiry, propriate pur occupants police need to inform may Court and District made be lawyer pose, especially since admitted litigation has been after court this building he entered that when Presumably .police already cruiser bad arrived. terminated. concealing cupants body a dead licensed1 drunken doctor who seems bungled (c) refusing permit un- an access to his pa- work and killed his might person en- whose life tient. conscious dangered by delay. extra- It would be Judge Burger police Since thinks the ordinarily conjure ex- more difficult to a Wayne’s apartment entered legally and igent this, in which than or one situation illegally, I think entered while through further unilateral conversation Washington ques- does not reach this more be more absurd and the door would tion, Judge Washing- it is not decided. gesture.” plainly “useless a Judge Burger ton and think the coroner’s adopt testimony rightly do think we should I not admitted and there- concept “sporting criminal disagree. contest” fore affirm the conviction. I governs justice form in which substance. previous trial, Judge Before a Pine- genuine importance in the Form is of hearing held suppress a motion on sense, law, form in but for the law is evidence. OfficerDixon testified beyond not will there are go. limits I got police cruiser a radio call at 6:50 society reject can be idea I p. person “for an apart- m. unconscious protec- frustrated and denied reasonable ment 614 of the Rhode Island Avenue forma- tion mechanical adherence to apartment Plaza.” At the house required lism. Police lay not be should learned that number was 618. siege apartment await a an Detective Martone called No. Precinct while a life search warrant on check the number. He “learned gamble my part For stake. I would phone placed call had pre- to the saving possibility the “unconscious by a cinct woman said her who sister was- woman” the drunken on the chance that lying Wayne’s dead in Doctor hysterical sister ex-doctor and the * * police knock- diagnosis death. made accurate repeatedly got apartment, ed answer, at his no. important than the Human life is more “police”, “op- announced and said police people purpose to statement of the door, police”, en the this is the in a loud rationally could not who They voice. for several minutes. knocked purpose. doubt about that joined Dickerson them in Joan the cor My affords this alter- view case According apartment. outside ridor ground to affirm the native action police, gone them to the she told she had admitting Deputy District Court Wayne’s apartment to Jean, with her sister testimony autopsy Coroner’s going Jean said she victim as to the performed on the abortion, that Jean went into grounds apart death, from the cause of Wayne, and that bedroom when 3(a) under above. discussed “Oh, God, Wayne my came out he said .”2 Affirmed. dead Martone she is Officer knock again very loudly and en ed demanded Judge (dissent- EDGERTON, Circuit trance, saying “police”. did ing). By purpose. announce their the time disregard the con- hard for me to It is “forced Martone and Dixon the door” rights entered, an un- policemen, and consider duct an under- five Wayne’s under bad been revoked license the bedroom and that she went into fied prior bed, lying dead; 2-123 as the result of a D.C.Code her sister saw abortion. she walked to her aunt’s home five away; and that cousin tele- blocks trial, neighbor’s Transcript, p. phoned 36. At Joan from a Wayne testimony came that when This has some ten- herself testified house. dency confirm, though indirectly, he “said she out of the bedroom “Oh, my God, dead”; I he said Joan dead”; said, when believe she’s that he to what knew broke my God, gave “Oh, she’s dead”. Joan in. versions. She also testi- each of these

215 being gathered taker, in the fieers would them vir- in others had and tually already petitioner certain the that corridor. purpose knows their so that an announce- hearing before the end At the Ibid., gesture.” ment would abe useless Judge into “the found that Pine he 310, appears to 78 S.Ct. 1196. It premises enforce- law [defendant's] in me that the officers facts known to the subsequent officers, search and ment the present justify that the case could not therein the seizure made thereof and certainty.4 appears pur- It now de- in violation were and pose of the remove a officers was to statutory constitutional and fendant’s corpse. any- appear But that it does rights”. all evidence “that He ordered unlikely thing they knew made it seized, result as a obtained secured occupants, Wayne, one of whom was is the same unlawful be thought they him. had come to arrest He hereby suppressed as evidence”.3 The difference is not technical but sub- was based order that his made it clear Wayne possible quite stantial. It is their announce to failure of the more concerned for immedi- his own purpose. ate freedom and man- than with the time get in ner began, appel- present trial When corpse. may well occu- informed court counsel lant’s pants opened would if door ruling. Judge prosecutor told The Pine’s purpose of had known actual entering result that “as a court police.5 body in they found this there, was taken deceased. She government argues po * * * the Morgue, and course reasonably lice believed there was Morgue performed au- an at the doctor living apartment. person in the if Even * * judge an- topsy trial right thinking so, had been it prosecutor conceded nounced not have excused would their unannounc Judge not limited order “is Pine’s entry. just “A forcible home ed man’s applies original indictment, private he is as when not there when * * * case.” proceedings he is It would be a far de parture from fundamentals right. Pine think I right protected that man has a hold require belongings privacy rule seems to notice “The home and its express long premises, of an announcement the form as he is on the but so none purpose their for demand- the officers he is not there. does Not such when making ing proposition appear burden of admission. The on its untenable certainly express announcement face the cases so Morri but indicate.” slight. States, words the officers U.S.App.D.C. more A few son v. United 104 requirement 352, 356-357, 449, (1958). have satisfied F.2d 262 454-5 States, Miller response v. United 357 this case.” Mere failure to receive a does 309-310, 1196, 1190, 2 301, omitting 78 U.S. not excuse the announcement. (1958). Supreme States, U.S.App.D.C. Court L.Ed. 1332 Woods 99 say suggested 351, did (1957), denied, ex- but 240 F.2d 37 cert. press announcement of 353 1 L.Ed.2d unnecessary of- “the facts known Curtis v. United nom. sub 59-1-60; May 15, (1949); No. Crim. D.C. 179 F.2d Masicl States, U.S.App.D.C. 32, lo v. United y. Barrow, F.Supp. 4. Cf. States United (1902); 304 F.2d 400-401 (E.D.Pa.1962). States, U.S.App.D.C. v. Hair United occupants If know that 289 E.2d get in, requires aware the want this does I know of no case which pur occupants police purpose, failure not excuse announce their ash the y. pose. supra; Judge Burger suggests Miller United should have U.S.App. Accarino done. 216 police, States, 926, 1385, 1 L. the facts known no for to the need 354 U.S. 77 S.Ct. precipitate (1957). action Ed.2d is clear from the fact 1438 They took no action. such emergency It is said that there was an many were in the corridor minutes be exempted re the case from the they fore broke in. As in the recent quirement their announce Wong ease, extraordinary Sun “no cir purpose. I think for two this erroneous cumstances excused officer’s Although po (1) distinct reasons. truthfully failure to state his mission be thought got they lice have when Wong fore he broke in.” Sun living telephone person

first that a call States, 471, 407, 484, 371 U.S. 83 S.Ct. apartment, in need of rescue inwas 415, (1963). 9 L.Ed.2d 441 they they knew better broke before in. summary: In even if the officers had they in, Before broke a woman had tele breaking purpose, announced their their phoned “lying them that her sister was illegal in would have been because there apartment, dead” in the and Joan her emergency, was no and even if there joined self had in them the corridor breaking emergency been an their in Wayne told them face to face that illegal my “Oh, God, they would have been said she dead.” because is did “[T]he seeking on exemption burden is purpose. those announce not their it, to show the need for McDonald v. We not po- need consider whether the 451, United 335 456 U.S. [69 S.Ct. got lice could have either a warrant or a 191, (1948).” L.Ed. 93 153] United authorizing subpoena them to enter Jeffers, 48, 51, v. States 342 U.S. 72 S. apartment body. they and take the If (1951). Ct. L.Ed. 96 59 Instead could, this would not excuse their forci- showing govern the need for it ble without either. Johnson v. though shown, conceded, ment has not 10, 13-14, 333 U.S. 68 S. was no there need it. is There 367, (1948). Ct. 92 L.Ed. 436 If govern record, in no denial and the not, their could violation of emphasizes, ment even when privacy arbitrary. all the more Their broke in would knew forcible would even body. find Jean’s dead The record does many if had not there been so of them show, suggest, or not even that some in gone that some could have au- seek dependent emergency kind of called guarded thority apart- others while (2) emergency immediate action. An can many ment. That so makes justify requires in law more than illegality breaking par- their “ easonableness fact. a war [R] without ticularly clear. solely adjudged extremity rant Wayne immaterial of the circumstances It is moment was not general possession body not characteristic entitled to posses- or mission.” Co was entitled to officer District of coroner Little, U.S.App.D.C. 242, perform in order to lumbia v. 85 of it an au- sion 16, topsy. F.2d A.L.R.2d 954 D.C.Code which re- affirmed, (1949), inquests, coroner to hold quires 339 U.S. does emergency An deal with admission or exclusion of 94 L.Ed. not justify police breaking 41(e) provides sufficient to F.R.Crim.P. evidence. announcing illegally purpose may their after evidence is that even seized breaking “subject be sufficient them to lawful detention” it making any hearing in evidence at “admissible in without announcement. Jeffers, In United States trial.” announced their (1951), L.Ed. in an instant. Announcement pos- delay. not entitled defendant have caused no would illegally narcotics, given seized but he occupants oppor session not have suppressed destroy them body to have tunity entitled other evi was escape. was, or to That there evidence. dence

217 showing possible probable unquestionably body, which made it cause.” Since the Agnello illegally States, testify, v. the coroner United 269 U.S. 4, Tay- 6, obtained, (1925). 46 S.Ct. should 70 L.Ed. 145 I think his States, 1, lor v. United 286 U.S. been That the have excluded.6 466, (1932); 76 Unit- legally Jean was L.Ed. 951 Jones learned from v. Joan States, 493, 1253, ed 2 is knowl- 357 U.S. 78 dead immaterial because this S.Ct. “Any edge (1958). assumption L.Ed.2d not, 1514 did sub- without the aid of the mag- illegal support entry, evidence sequent sufficient to a the coroner enable testify. istrate’s “independent disinterested determination source” issue a simply search principle warrant will that evidence obtained making illegal officers in a a search use means without without is not exclud- of ground warrant on the would reduce the [Fourth] ed that the same evidence nullity by illegal Amendment also to a and leave the has been obtained use of people’s body, consequently homes dis- means. secure Since testimony, cretion of v. the coroner’s officers.” Johnson were not obtain- 14, illegal States, supra, means, prin- United ed 333 without use of U.S. at 68 ciple application S.Ct. has at 369. As re- no here. Clark cently Circuit, said “a Second majority po- of court take the showing government suffi- had legal acquisition sition of informa- independent cient information available illegal leading tion to an makes evi- so that in the normal course of events resulting illegal entry dence ad- might questioned have discovered the missible, by using legally acquired if illegal evidence without an search can- way gov- information different illegality not excuse the or cure tainted got resulting could ernment evi- matter. The test must one legally. says: dence The court “even actualities, of possibilities.” United not entered Cir., Paroutian, States 2 v. 299 F.2d apartment at the time and in the manner (1962). 489 of no I decision know they did, the coroner would sooner or contrary. by later have been advised reported sister, order the information “In to make effective the funda- guarantees body, would have obtained the mental and would constitutional sanctity inviolability prescrib- conducted the examination the home Boyd person, States, ed law. See D.C.CodeAnn. 11-1203 116 (1961). Thus, necessary 746], 616 causal rela- U.S. 29 L.Ed. [6 S.Ct. Supreme] activity nearly tion between and the Court held half [the sought ago during lacking century evidence to be excluded is evidence seized saying in this case.” This amounts to an unlawful search constitute government against proof that because the victim of the obtain- search. enough get States, ed from Joan information to Weeks v. United 232 383 U.S. 652], subpoena a warrant or a no S.Ct. L.Ed. 58 The exclu- [34 get one; sionary prohibition need that evidence extends obtained as well to breaking products without warrant is ad- the indirect as the direct missible the same evidence could have such Silverthorne Lumber Co. invasions. legally by getting obtained war- v. United [40 Holmes, Supreme rant. has held Mr. Justice Court L.Ed. 319]. ** contrary many “Belief, speaking in that ease times. however for the Court sought succinctly founded, expressed policy well article dwelling exclusionary in a house rule: ‘The concealed furnishes essence of broad forbidding acquisition provision justification place for a search of that way is without a in a certain that not warrant. And such searches evidence notwithstanding merely acquired held evidence so shall not unlawful facts U.S.App.D.C. concurring opinion F.2d 6. Cf. Circuit Judge Wright Killough used it shall before the Court but that does

not be at all. course this used Of the facts obtained mean thus knowl- and inaccessible. If

becomesacred edge gained independ- of them is from they may proved like ent source others, knowledge gained by the but the wrong used own cannot Government’s way U.S., proposed.’ it Wong v. Sun S.Ct. at [40 183].” United at 416. Though testimony result- the coroner’s legally information, indirectly

ed obtained, from dead, resulted Jean was knowledge directly

more through obtained subsequent action of

police. held that Courts have sometimes supervening criminal cause insulates a

previous from re- non-criminal cause

sponsibility consequences. doubt I pre- that a

if it has ever held before a su-

vious non-criminal cause insulates responsi-

pervening cause from criminal bility consequences. al., RIVER OF FALL et CLUB

BOYS Appellants, al., Appellees.

Nancy KE AY et Smith

No. 17231. Appeals States Court Columbia District Circuit.

Argued Jan. March

Decided Howell, Washington, A. Maxwell Mr. appellants. C., for

D.

Case Details

Case Name: Lewis L. Wayne v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 4, 1963

Citation: 318 F.2d 205

Docket Number: 16709

Court Abbreviation: D.C. Cir.