Rhinelda M. Bell v. United States
254 F.2d 82
D.C. Cir.
1958
Check Treatment

*1 turpitude involving moral and sentences in evidence. for crimes were received entry Cir., Guercio, Unit- into the after his Del committed Sumio Madokoro v. Sing hearing 1947, 164; Dengeleski at ed Pursuant States. rel. ex Sing deportation Prison, 1933, order was en- Cir., Tillinghast, Saccardio v. May 1932, deportation 12, was legal question tered but F.2d 440. The whether re- until should deferred DeBernardo entry crime of unlawful involves moral imprisonment. turpitude from Later leased was an issue Dis before the Sing escaped Sing was soon declaratory judgment he but from trict Court in the recaptured; September 4 of that on ably rep suit which was DeBernardo year additional term by attorney. was sentenced to an resented He was there during years robbery of 15 prejudiced fore not as to that large. by being time he was unrepresented brief at at adminis hearings. trative Wiczynski rel. United States ex Immigra- 30, 1952, July Board of Shaughnessy, 1950, v. Appeals deportation tion or- vacated the 185 F.2d 347. deci The District Court’s reopened der entered in turpi sion that the crime involves moral hearing receipt of as to evidence tude was correct. rel. ex States York unlawful whether under New entry law Meyer Day, Cir., 336; 1931, 54 F.2d turpitude. re- 12, moral involves ex rel. Sirtie v. Commis hearing began opened September Immigration, D.C.N.Y.1925, sioner of immediately was but recessed so F.2d 233. DeBernardo could obtain counsel. When As imposed the sentences reopened hearing 1927 and was reconvened 1931 were sufficient to sustain February 5, 1953, nearly the de- months five portation order, ques- we do not reach later, hearing appellant the family advised tion whether a proper- third sentence money was that neither nor his he ly hearing. added at the 1953 counsel, with which retain so that hearing unrepresented. was still Affirmed. proceeded, during nevertheless lodged of it course against another appellant based on his rob- bery following conviction his es- cape Sing Sing. February deportation

an order of was entered

which was affirmed the Board of Im- migration Appeals July year. 2 of that against subsequent DeBernardo’s suit BELL, Appellant, Rhinelda M. Attorney declaratory the judgment General adversely was decided himto America, UNITED STATES of appeals, prin- the District Court. He Appellee. cipally that he was denied No. 13684. process provided due when he was not Appeals United States Court of deportation hearings. with counsel District of Columbia Circuit. unnecessary to decide Argued Nov. process requires due that counsel whether Decided Jan. indigent represent an appointed to de deportation proceeding, fendant be Rehearing Petition Denied deportation cause the facts which March in this case were not in issue. ordered hearings appellant At the administrative having been sentenced admitted exceeding year, to terms one than once indictments, judgments copies *2 Harris, Washington, Mr. E. Thomas D. (appointed Court), appel-

C. this lant. Harry Alexander, T. U. Asst. S.
Atty., Gasch, with whom Mr. Oliver U. S. Atty., and Messrs. Lewis Carroll and Belcher, Attys., Carl W. Asst. U. were S. brief, appellee. Mr. Arthur McLaughlin, Atty., J. Asst. U. also en- S. appearance appellee. tered an Prettyman, Bur- Before Bazelon Judges. ger, Circuit PRETTYMAN, Judge. Appellant indicted, tried con- housebreaking larceny. victed for He claims unreasonable search and seizure. three-thirty At about o’clockone morn-

ing police officers ain scout car saw appellant and another man in an automo- pull away bile curb in front a food store and drive some two blocks lights. stopped The officers without them and asked see driver’s license registration inquiring card. The of- flashlight asking and, ficer questions while used his documents, about the flicked light rear of the about the car. On forty were some the back seat cartons cigarettes. officer asked about Appellant’s companion them. made a seat, reach under the motion to upon where- officer ordered both men out of the car. Up point the members of agreement. court are right stop certainly driving car has a three-thirty o’clock morning, right certainly and he has flashlight Stacey driv- Emery, examine use approaches [24 L.Ed. When he 1035].” er’s credentials. right he has a car side of the the driver’s Rutledge Brinegar:5 wrote in seat, about the back flash *3 “However, if those standards [for self-protection other for no if his own guilt] determination of were to Argument presented on reason. determining applicable made in or flashing was whether the probable cause for an arrest or search. not an unreasonable seizure, especially search and it question; if that need not consider involving in cases such as this mov- under reasonable it was was a search ing vehicles used in the commission inquir- When circumstances. crime, few indeed would be cigarettes got they the satisfactory— where ed about charg- officer, situations in which an less than the answer protecting public ed with inter- Maryland.” place in “at a by enforcing law, est could take ordering of the men out the two After effective action toward that end. placed them under car the Those standards have seldom been so begins. disagreement point our At this applied. Mallory1 Supreme held Court dealing cause, “In with can that however, very implies, as the name felony has if he warrant probabilities. we deal with These cause, and did What is cause. technical; they are not fac- are the it? officerhave this practical tual and considerations 2 everyday Su reasonable life which v. United States In Carroll men, legal prudent said, quoting techni-

preme Court cians, proof Pennsylvania: “The substance act. The standard of Court accordingly probable cause] must correlative to what [of the definitions of all ground proved. belief reasonable is a guilt.” “ quota repeated that of all defini ‘The substance Husty Brinegar.3 United v. In tion tions’ of cause ‘is a reason wrote Mr. Justice Stone States4 guilt.’ able Carthy belief of Mc Court: 69, Armit, 63, 99 v. De Pa.St. it is cause quoted approval show “To necessary with Carroll arresting officer opinion. [page] 267 U.S. at legal evi- him page 288, before have had should S.Ct. at 69 L.Ed. [45 543]. illegal act. suspected dence And ‘means less than evidence States, 268 U.S. v. United justify Dumbra which would condemnation’ 546, 69 L.Ed. 435, conviction, Marshall, J., S.Ct. [45 or said C. States, 1032]; United century v. Carroll for the Court more than a enough apparent if ago supra. States, in Locke v. United his atten- to 339, have come facts Cranch L.Ed. [3 364]. sufficient, circum- in the time, any rate, are Marshall’s tion Since reasonably discreet stances, lead a it suspicion: come mean more than bare prudent believe man to exists Probable cause illegally possessed in the liquor is where ‘the facts and circumstances See searched. knowl automobile within their edge [the officers’] supra; States, reason- Dumbra and of which 449, States, Mallory 694, 354 U.S. 240, 700-701, v. United 4. 282 U.S. 1. 51 S.Ct. (1957). 1356, (1931). 1 L.Ed.2d 77 S.Ct. L.Ed. 629 Brinegar 45 S.Ct. L. 267 U.S. v. United (1925). 174-176, Ed. 543 69 S.Ct. 93 L.Ed. 1879 Infra note 5. having grounds commit- on reasonable ably trustworthy [are] information agents felony”. Fed- ted And warrant themselves sufficient Investigation are author- Bureau of eral caution a man arrests without ized statute make has been an offense that’ rea- “if for a warrant being Carroll committed. grounds to believe sonable S.Ct. [45 U.S. committed” 543], be arrested has son 69 L.Ed. felony. long-prevailing “These standards safeguard rash citizens from seek deter Reasonable “ unreasonable interferences actual [F] the circumstances. mined *4 charges privacy everyday from unfounded and practical of considerations and give “acting They seek circumstances”, of crime. also life”, “facts and enforcing leeway for the law facts”, fair facts”, the apparent “in “the community’s protection. Be- expres in the of the some circumstances” are many con- which cause situations opinions the used the Court sions exe- course of perti front officers in the quoted. The from which we cuting less or duties their are mo of the circumstances are those nent ment, ambiguous, allowed room must be patrol Officers ones.9 the actual part. for some mistakes on their night prear ling not do the streets at of those But mistakes the must setting. range They not schedule do the men, acting on facts lead- reasonable ing office. an steps of calm the their of sensibly conclusions their required They Things just happen. probable probability. reasonably rule duty act as a matter of as practical, a nontechnical is cause conception the circum act under prudent men would affording com- the best happen. circumstances as those stances ac- promise found for that has been power officer an ultimate Even the commodating opposing these often justification felony, the case a the Requiring more would interests. offender, killing depends on cir an To unduly hamper enforcement. Judge law As the moment. cumstances law- to leave would be Circuit,10 less allow Fourth wrote Parker mercy abiding citizens at the right has the is that an officer rule caprice.” whims or officer’s circum under the force use such “as necessary” reasonably appears stances Supreme Mallory, supra, arrest, and, said, jury as effect may upon “The not arrest said necessity judge “in the of the must ours.) suspicion”.6 (Emphasis mere circumstances suspicion on is But time.” appear the officerat the opinions by suspicion. not mere Among pertinent Rutledge, circum- the other and Justice Stone qualification and function referred, is make to which we have amply stances making person Code the United States clear. And reasonable, and a cautious is clear. makes the difference Section standard also 7 question wheth- But the is man. provides prudent an 18 2236 of Title searching making had person the arrest dwelling without warrant er cause is not Probable misdemeanor, pro- guilty probable cause. but it of a existing concept apply in a vacu- to philosophical the section vides that shall matter. ; practical factual arresting “suspected and is a it um Trupiano page 334 page See also U.S. at 77 S.Ct. 6. 354 1229, 92 L.Ed. 68 S.Ct. U.S. (1948); 55 Poldo v. (1948). 62 Stat. 1932). (9th F.2d (1951), U.S.C. § 64 Stat. of Vir v. Commonwealth 10. Stinnett Re, (1932). ginia, Di 9. United 92 L.Ed. 68 S.Ct. spells A fact which reasonable cause to men in the car had committed it. may impression a doctor on a make no sudden, unanticipated situation was a carpenter, development. and vice versa. Did the Suppose the officer had ar- arrest, son who made if a reasonable upon rested these men prudent man, ? cause housebreaking, but the legal experienced An officer narcotics in the preparing in- traffic cause in find dictments decided offense was drugs appearance of robbery; smell of suppose information later eye paraphernalia lay had disclosed a the ar- murder. Would significance. His action rest have been invalid? Of course not. might measured what mockery So to hold would make a passerby. cause to an civilian untrained admonition to Court’s us peace When a makes the practicali- is a cause matter reasonable, ties, standard cautious means not of technicalities. prudent peace officer. properly Reference can made to cause what constituted subject upon exhaustive be- articles eyes reasonable, pru- cautious *5 Wilgus, fore us. in Arrest Professor his peace dent officer under the circumstanc- 1924,13 Warrant, published Without in es of moment. the developed history He of rule. the problem one officer is faced England14 quoted Halsbury’s Laws of probabilities of certainties —not peace may as follows: “A officer arrest necessarily As we eventual truth.12 felony suspicion felony on of whether a dealing quoted Rutledge, “In quot- He has has not been committed.” very however, probable cause, with as J., Blackburn, Hadley ed in v. Perks probabili implies, name we deal as follows: write ties.” And the Justice went to felony actually “If a were commit- for mis room must be allowed some that might takes, long ted a “those arrested with- so as the mistakes acting men, by any one, on facts lead a if he reasonable out warrant were ing sensibly proba suspected having to their conclusions com- bility.” felony; mitted the and a constable go could if he further had reasonable At the trial in bar, the case at in an- ground supposing for a question, certain swer “And for of- what felony, supposed son committed being were fense arrested that at though might he arrest him no fel- time?”, “Investiga- testified, officer ony actually had been committed.”16 housebreaking.” tion of Of there course “Investigation”. is such crime as no But Wilgus Professor adds: “These cases-- given by description the officer does officers, as have settled the rule and' go question probable to the cause. dissent; there seems to be no are- not what is name the officer nearly quoted in referred to or all the- action; whether, his it is attached cases that innumerable have followed.”' himself, in which he found the situation The rule is bottomed on “reasonable- reasonable had a believe ground”. Professor Foote recent a felony had been committed and that article, Safeguards Law of Ar- 11. In tomobile Carroll Court recited as material 1934). bootlegger and arresting Brinegar, 1939); v. United was low on Sebo, officer knew the Kwong How v. United observed that States, supra; example, F.2d its axles. See also 73-74 the facts that (9th Cir., subject the au (7th as 13. 22 Mich.L.Rev. 12. 14. Id. at 686. Brinegar Supra [1866] note 1 Q.B. v. United at 798. supra. explanation. men proposals, sonable One of opposition to rest,17 stresses Act, though weapon. reached as Arrest notably Uniform power Perhaps circumstances, an officer’s no extend one of would these “which im- now beyond separately, limits taken suspects spell would to detain arrest requirement say cause. posed by We do not of- it would. The Pro- cause.”18 ficer grounded was faced with a of cir- combination is essential says: “What cumstances. We must treat Foote the situation fessor sufficiently suspicion as he faced it. We think that these the officer’s under cause.” police circumstances a had amount reason- reasonable mainte- able thesis is belief of his thrust cause. been committed standard and that these men had nance of the upon bare committed it. arrest He opposition cause for His grounds. concluded, reasonable “This suspicion, than trial less court very careful premise of clear case of excellent firm validity reason- suspicion work vigorous lawful arrest on thesis guiding housebreaking.” agree. rule. grounds as able What else done? should the reams that total of sum duty patrolling He was on the streets subject is that have been written very purpose commercial area for the a war peace preventing apprehending per- —or grounds, in when he rant light might alia, son who have done—inter the moment of the circumstances thing apparently done. had been through eyes, viewed required inquiry The circumstances *6 and committed been satisfactory explanation least. Some it. him before forthcoming. should have been None reason require police officers to threatening gesture apparently An was. able; reasonable. too must we patrolman was made. What should the circumstances We examine the gesture have done? Forthwith these The officer acted. under which men inquiry further on? Or detain them for an automobile. Su were in men preme investigation obvi- —for pointed and out in Carroll Clearly ously suspicion? his significance Brinegar, supra, of that duty required the latter. appraisal of officer’saction. an in an fact legal. subsequent A arrest moving problem presents dif vehicle sundry ar- search revealed various and presented house where ferent money shown to ticles and which were o’clock was about three It is involved. in evi- stolen. The admission have been Nighttime morning. presents prob problem in dence of items is these daytime. from those lems different to the case. The search was incidental away from in front pulled car had legal. valid and so was arrest parked in store; not men had been Affirmed. run car was district. a residential forty lights. Judge ning (dissent- BAZELON, There were without cigarettes ing). back seat. cartons only explanation agree my offered as to the brothers that I cigarettes place in (1) “a officer acted source unconvincing reply appellant surely Maryland”, stopping car in which and riding lights companion were An automo without an officer. his ato flashing A.M., (2) his about at 3:30 middle driven bile ordering (3) seat, both men night forty cartons the back and with occupants one of cigarettes) when car (8,000 in the back out cigarettes reaching gesture under the seat.1 investigation for rea- made calls seat weapons. revealed no 1. The search 52 Nw.U.L.Rev. at 18. 18. Id. point, properly At that the officercould driving with- arrested both men for although lights. be, I out even decide, do not would that an arrest charges. proper upon But the

been other charge of arrest here “suspicion on a was rested housebreaking.” There is il-

no such Hence crime. legal. illegal read if And it is even we house- crime of as one for the

breaking. officer, as his statement “suspi- charge indicates, only housebreaking oc- cion” because no not presence he was

curred in occurred outside

even aware that one had presence. Probable cause suspicion valid is essential

mere incident to the search was Since arrest, is bar- seized the evidence valid the court’s dissent from I

red. therefore such approving admission

decision

evidence. *7 Tissue, and Al

Leta M. TISSUE E. Appellants, Georgia Volta,

Ettire VOLTA and Appellees. No. 13798. Wesley McDonald, Mr. E. Washington, Appeals United States Court of C.,D. Newton, with whom B.Mr. Austin District of Columbia Circuit. Jr., Washington, C., brief, D. was on the Argued Sept. appellants. 12, 1957. Doherty, Washing- Decided Dec. H. Cornelius ton, C., appellees. D. Rehearing Petition for In Banc Denied Before Washington Prettyman, Feb. Judges. Circuit Burger,

PRETTYMAN, Judge. Appellants, Tissue, Mr. and Mrs. filed' complaint District Court damages personal injuries suffered by Mrs. Tissue in a fall. The defend- Volta, ants were Mr. and ap- Mrs. our pellees, who were owners and landlords.