Sherman Brandon v. United States

BRANDON, Appellant, Sherman America, STATES

UNITED Appellee.

No. Appeals States Circuit. of Columbia District

Argued May 5, 1959. July

Decided Washington,

Pahy, Edgerton and part Judges, dissented Circuit Judge,

Bazelon, Circuit dissented. Marmet, Washington,

Mr. Robert A. C,, Segal, D. with whom Paul Mr. M. Washington, (both appointed D. C. Court) brief, appel- was on the lant. Belcher, Atty., Carl Asst.

Mr. W. U. S. Gasch, with whom Messrs. Oliver U. S. Atty., Harry John D. Lane T. Alexander, Attys., Asst. U. S. were brief, appellee. Judge, Before Chief Prettyman, Edgerton, Miller, Wilbur K. Bazelon, 312 room, ap searched, later and told Danaher, Fahy, Washington, Bastían Judges. pellant Bill wait there while went Circuit Burger, large buy quantity A chickens. of nar cotics, “capping” equipment para Judge. DANAHER, Circuit phernalia that He seized.2 denied Appellant on two counts was convicted he the narcotics and insisted were his He law. violation of the narcotics nothing narcotics, knew record about court errone- claims here the trial your of his it shows. “Was standing ously (1) ruled he lacked “No, sir, room?” he was asked. event, (2) any suppress, move my room,” replied. wasn’t he On cross the search warrant was valid. al examination though he testified hearing, pretrial appellant’s Without name Sherman Brand his real suppress denied. motion to on, also used the names “Sherman he judge as- ruled “Unless the defendant Brown” Miller” and had and “Sherman ownership arti- serts either of the seized getting done so ever out since premises cle in which or control of the reformatory. He admitted earlier con standing occurred, he no the seizure had grand larceny, robbery, victions of lar suppress.” The to make a motion to ceny goods shipment from interstate motion was the outset renewed violation of the narcotics laws. counsel, and, by stipulation trial by judge fully trial

was progressed. as the heard Youngdahl Judge conclud- States, 1950, In Jeffers v. 88 failed es- ed that the had U.S.App.D.C. 58, 60, standing suppress. tablish to move the Government had contended that Jef- ruling His reads: standing fers lacked unless he could testimony [appellant] has “In his show that he owned controlled the or over he no control stated that had and also searched asserted own- just premises; ership of the evidence seized. We found temporarily; that he had no there require that the true rule premises; possession whatever of the both such elements be established. We drugs possession; he had in his no “person aggrieved” decided that a with- drugs nothing in the knew place; about meaning 41(e), supra in the note Rule drugs no there were who, Jeffers, included one had like place. simply ownership claimed of the evidence completely denied has “He recognized seized. We it to be settled story police officerwith entire doctrine that the movant must show that drugs and on to the reference rights personal had been violated. stranger complete com a basis he is exclusionary rule We observed attempting ing into this court by judiciary had been formulated property suppress some to move to of the victim of in aid unconstitutional way which, in even the over noted We conduct. the federal imagination, of the remotest stretch unanimity had courts with stand- denied whatsoever.” had control Jeffers, found, otherwise. we had requirement showing Appellant that he and his had testified satisfied go picnic. personal “Bill” were to violation friend given key ownership of the seized Bill claim evidence. had U.S.C.A., 41(e), property au to direct that certain of which Fed.R.Crim.P. * * * aggrieved person unlawfully an un “A he is the owner thorizes * * to move and seizure” and taken from lawful search seized sup property and to return of the press Ap In the evidence. 2. The evidence seized included use as its some 453.3 grains pendix hydrochloride, pre- in Rule 58 described of heroin of Forms capsules, “illustrative,” pared “cookers,” Form 16 reads te be needles hereby part, moves this Court and other items. “John Doe agreed. aggrieved” “person “The re- cumstances is Supreme not a standing meaning See, to within spondent unquestionably Rule. example, without war- object Jones v. United seizure made to the U.S.App.D.C. 345, na- the contraband cer unless rant or arrest precluded granted, 988, 1959, tiorari seized 359 79 narcotics U.S. ture of the 1125, 978; ex- purposes 3 assertion, v. L.Ed.2d Accardo for his States, U.S.App.D.C. 162, interest rule, property United clusionary a 101 247 1951, Jeffers, 568, denied, 1957, F.2d U. v. certiorari 355 therein.” United States 898, 195; 93, 96, 52, 96 L.Ed. 48, 273, S. 78 S.Ct. 2 72 S.Ct. L.Ed.2d 342 U.S. observed, appel- States, 1955, Gaskins Here, v. United 95 U.S. have as we 59. App.D.C. 34, claim, 47; the con- on and 218 F.2d and almost lant made such knowledge squarely Scoggins nar- point, of the in trary, all United denied v. States, 1953, U.S.App.D.C. 29, 202 92 cotics. cited; also, cases Wash F.2d 211 and see States, United v. McDonald ington States,4 U.S.App.D.C. 92 v. United 191, 452, 451, 1948, 69 S.Ct. U.S. 335 1953, denied, 31, 214, 202 F.2d certiorari 153, McDonald discloses 93 L.Ed. 938, 956, L.Ed. 345 73 S.Ct. 97 U.S. Columbia a District a roomer in was States, 1945, 1377; United Gibson v. Standing rooming accorded house. 381, U.S.App.D.C. F.2d 80 149 to him account.3 Here on that 384; States, App.D. 60 Shore v. United prem alleged ownership of the had not denied, 137, 519, C. 49 F.2d certiorari He was a tenant. was not ises. He 1931, 865, 656, 75 L.Ed. 283 U.S. 51 S.Ct. employee. was not an not a He roomer. 1469.5 in other Courts Similar cases 1932, Cir., Medalie, Connolly 2 Cf. v. legion. See, example, Appeals are for accounting for his 629, In 630. 58 F.2d 1956, States, Cir., 5 Lovette v. United room, he neither presence “Bill’s” in 263, 230 264 and cases F.2d cited. the con alleged proved a basis nor clearly in personal The burden was his clusion allege prove execution their the facts and to officers vaded repeat position. have to sustain his warrant. We search sup- so, cir- under such failed motion to movant to do edly held that example, See, issue of on divided seized thereafter. 3. court States, Re, 1948, “standing.” United Di 332 U.S. v. United States v. McDonald 581, 210; 1948, 96, 222, U.S.App.D.C. F.2d 957. 166 92 L.Ed. Wil 68 S.Ct 83 States, 1956, if McDon- Supreme 99 noted liams v. United U.S. granted, App.D.C. 161, the evi- 789. As had been 237 F.2d ald’s motion latter, returned seen that will he Govern dence against may finger nothing, for use ment take even be available hence 456, prints accused, Bynum at 335 U.S. of the v. United codefendant. “Bill,” 1958, U.S.App.D.C. States, 368, who Here 193. 104 262 at 69 S.Ct. 465, is not before room and evidence from the searched seized controlled person accused, consequent upon have taken not shown to of the and is us steps complain illegal arrest, may received, search an not be Gi States, 1958, ordenello v. United 357 room. U.S. 480, 1245, 2 78 S.Ct. L.Ed.2d 1503. Of legal v. United that Schencks if the arrest noted course 4. we the seized Where 84, 185, 1924, App.D.C. competent. See, States, example, 2 F.2d 55 evidence is by appellant, Draper States, upon 1959, over- had been v. United relied 358 U.S. States, 1949, Brinegar 307, 329, 327, citing v. United 3 79 S.Ct. L.Ed.2d ruled 160, 1302, 175, approval, 176, page 312, 69 S.Ct. U.S. note 4, page 332, Wrightson 93 L.Ed. our States, 1956, U.S.App.D.C. v. United applied exclusionary 377, 072; rule as such 236 F.2d Ellis v. United 1959, ap- States, U.S.App.D.C. fashioned the courts to cases 372; involving ply searches Christensen situations v. United very problem U.S.App.D.C. A different arises seizures. 259 F.2d illegal arrests evi- with reference person accused, dence press properly Wilson overruled. admissible at the trial. It could be- Cir., 1955, 218 F.2d suspicious acts, g., inferences from e. consort peddlers, with known surreptitious II passing package, aof intercepted suggesting- message res Even were our there error in criminal activities, or “standing,” number- olution of the issue coming such events supra, knowl appellant’s search attack * * * edge of But, argued officer. warrant must fail. He has he takes the law hands “probable lack into own S. Com cause for a U. protection does not seek the missioner un warrant warrant, he must on 33, der act some evi Title Section 414 of the D.C. 7 dence known to him.” Code [1951].”6 1959, Here the without officer did act 358 Draper In a warrant. He his evidence- submitted 311, 329, L.Ed.2d 307, 3 U.S. 327, petitioner 79 S.Ct. Thus, to a United States Commissioner. the claim advanced the usual reasonable- inferences which by supplied was an informer information “hearsay,” may men draw from evidence hearsay were is not because and by magis “drawn neutral trial, and detached legally competent criminal in a * * trate v. United Johnson legally considered could not 1948, 10, 14, “probable U.S. assessing the existence 367, 92 L.Ed. 436. con- petitioner, the Court cause.” The “entirely .Dis- cluded, in error.” posed was Defense counsel trial “one- conclusion, senting final proposition,” from the Court’s narrowly specifically, and Douglas, Id., Mr. Justice or whether validly not the was- search warrant page page observed S.Ct. at score, issued. On that trial' point: judge hearing. as to this conducted a careful “The- judge quite any correct is on “The Court shall receive issue evidence saying proof of ‘reasonable fact the decision believing grounds’ was 41(e). a crime for The- motion.” Fed.R.Crim.P. proof being identity promptly not be need committed the informant lish set thereupon ist. but davits before oath the for erty narcotic * * * affidavit * In “(b) “(e) “(d) “(c) “(a) ^[*] may produce, * * « parties and cause pertinent grounds * forth the upon probable and the A search H: or take The affidavits or issuing If A search * may particularly District of cause drugs grounds of the complainant and satisfied of the existence of making a United judge place of the application part judge them to be subscribed their are warrant any such narcotic facts warrant or be seized believing warrant, them. to be searched. cause describing depositions Columbia States * commissioner or tending require section depositions cannot be * * commissioner application may supported commissioner examine thereunder to estab- when their witnesses possessed be provides: they in writ- or that issued issued prop- must, drugs must affi- ex- on by or by from a confidential “were turns That ry’s er under the District of we have here no a warrant cause for an arrest warrant U.S. 397, and an arrest warrant existed for v. United gue denello, and none as to an arrest without grounds “hearsay” may predicate rant there existence, In Costello v. United There noted narcotic ** determination 359, 361, result possessed is * 1245, 2 probable or States, 1958, that a U.S. at * Court recited the facts at as in the action of the the indictment. follows from the probable detail must definitively * (Emphasis 76 S.Ct. of evidence which a L.Ed.2d 1503. Of course police problem Draper. stating informer. The officers cause to believe their received information cause 357 U.S. officer attached to States, 1956, Columbia 368 of 68 probable determined that based thereon. as to a search war- an indictment added.) Our Commission as in Gior Giordenello for grand ju 100 L.Ed. particular probable question its Code. cause S.Ct., mag- is- judge al How (cid:127)disclosed,9 an examination of trial extensive whereafter officer was complete made the Commissioner scope cross-exami lowed record, is not does disclosed for it the officer. nation of appear subject have been the developed Aiken Officer It questioning. That such an examination years had been attached several was made we have no reason to doubt Metropoli- Squad Narcotics * ** provides: the Code com- “The Saturday, Department. tan Police On issuing must, missioner war- before September 14, 1957, user a woman rant, * * * complainant examine on oath the narcotics, year had been who for over * * * require affidavits informer, telephoned * * * * * depositions or take going to Popeye Bill “Sherman and applica- We do have aus sworn before bring night back New York that par- tion for the warrant which they narcotics; as soon as ticularly describes the town, know me arrive in would let she “ * * * searched: entire room marked they woman where went to.” The on door and under door #7 #7 by the been arrested of times a number - #34,” Street, located at 1620 18th N. through officer, in- known W., floor, “2nd The fur- front.” officer vestigation “Sher- to with be associated ther swore he reason to had believe Popeye nar- man and and the Bill” with being therein “is now certain concealed given traffic, informa- cotics had and she property, namely, needle, Heroin, proven “from tion to that has time time syringe, para- and other narcotic reliable.” phernalia used in cut or admin- [sic] following Sunday, day, she tele- a istering The of heroin” in violation of “Title again. Room to phoned had been She 4704(a) 4705(a) 26 U.S.C. and [§§] - -x-* Street, “Sher- and 1620 18th at No. 7 supporting */» £ affidavit further brought quantity Bill” had man and the attributed information source to a Sherman there. She narcotics of past that had been reliable and that given in a address drive to the information from the same re- source Plymouth, men did the very day ceived that indicated the de- address, given but were at the live scribed be controlled enough long merely day there meet man colored known Bill as and another up.” then cap stuff The officer “to the man colored known as Sherman. The of- explained and the Commissioner called ficer’s affidavit further attested appointment was An circumstances. the being large premises were used to store a later Commissioner made to meet the quantity pres- of heroin and that “at the his office. at supply ent such time” on was there knowledge hand. Based on his meeting Commissioner, the the Before illicit of the previously narcotics traffic the verify the information. went officer out reliability established of area, parked his car to the He drove information, source the officer at- waited. saw the corner and around present his tested belief narcotics Plymouth. up in a 1948 drive Brandon paraphernalia then on as not then know him officer premises. recog- Sherman, Brandon, but and he as as one “involved On such information nized sworn at experienced The officer traffic.” narcotics narcotics officer so - him 1620 18th Commissioner, followed distance known some latter Room No. 7. and saw him enter “I concluded Street am satisfied is that there ” * * * * probable Commissioner’s returned cause He then and issued accordingly. office. the search warrant What might probable have found Brandon istrate testified later that he knew Id., issuing “probably girl. always a search warrant.” her as cause Bill’s see page page 13, together.” 68 S.Ct. at them might vit, properly other Commissioner’s ever evidence the thus be convinced may grounds have elic ap examination affiant existence plication us, has been judge do before as ited we seems obvious. He could least persuasiveness noted. included at for himself That specific upon by No. officer, identification Room relied facts those clear, knew personally known to Commissioner the officer as as well probably presence of the fact of the those attributed to the source offi arrived “Sherman” within how he cer’s belief.11 cially The Commissioner offi there, independent verifi officer’s declared himself satisfied that developed. cation had That the cause existed for the issuance ample grounds application had the independent search warrant. Here then was the judgment circum seems obvious. facts and the “neutral personal magistrate.” stances within the officer’s and detached Johnson knowledge coupled of which those 333 U.S. at reasonably trustworthy informa fully tion him as a man warranted Thus tested in Court, the District believing that an reasonable caution in grounds for the Commissioner’s issuance against offense laws had narcotics emerged of the search warrant being committed,10 been and and he judge. too, satisfaction We, of the trial correctly are satisfied so attested. concluded that properly the Commissioner acted what was before taking an officer ease of him, and that the search sought own hands. He the law into warrant was valid. protection warrant. my feeling,” judge “It is the trial important particulars as He verified in said, “that if proper there ever was necessary, reasonably far as then seemed police procedure, police proce- by supplied one the to information dure commended, that should be it past. He proved reliable in who had the procedure was the that was in used Plymouth driven as it was saw the this case Sunday where even on a by supplied reliable to the the address the officer pains went to the of appellant enter He saw the informant. searching out the Commissioner to proceed 7.No. to Room the house and get a warrant. above number 7 on the door He saw the “ * * * ought I think we to known to the number Circumstances 34. police commend this ing officer for tak- by and inferences to be drawn the pains the extra pro- he in by Justice Mr. such as are described tecting rights the of the individual Douglas, predicated supra, officer’s the independent here and he made an in- fully As reasonable belief. founded and vestigation. investigator, experienced narcotics án “Now, sight recognized appellant proper “Sher- this isn’t decent police engaged work narcotics then I man” as don’t one know what investigation proper police would be traffic whom he knew from work.”12 Popeye associated with have been seems so It to us. an asso- Bill. He latter to knew be Affirmed. informer, ciate of herself woman FAHY, Judge (concurring Circuit very in narcotics had been in that user who result). his room. Commissioner from That appellant’s examination the officer from standing of As to require application supporting affida- sworn the District Court to consider the valid- States, Draper 10. United case, 12. In the view we take of the other page page 313, 333. claimed errors need not be noticed or discussed. We pellant’s ap- thus do not rule on supplement Cf. Giordenello v. United motion to the rec- U.S. at S.Ct. at ord. my seizure, ity I find lish the I of search and crime. think makes no dif- it majority disagreement possession ference with the that a concession of self in purposes objecting 41(e) for Rule Fed.R.Crim.P. of to the our court. evidence might aggrieved” “person move not be authorizes a admissible guilt, right suppress protest been claimed not evidence should require by or seizure. accused accuse himself obtained an search an invalid outgrowth primarily prosecution’s of when the own is Rule right privacy es establishes Supreme is decisions his require numerous exclusionary rule, tablishing and involved. toSo too exact high light price availability interpreted those of the should be exclusionary Accordingly, attempting, I I think rule. decisions.1 So prosecution’s hold in this case matter that the adminis core is by justice evidence as to the the federal and seizure con- tration criminal standing upon ferred ject free of evidence ob- the use courts must against to the a viola use of obtained accused obtained evidence an alleged Judge rights Fourth See tion under the violation. dissenting usually opinion Bazelon’s in Christen- It has Amendment. been U.S.App.D.C. sen v. 35, rule the that to benefit obtain 192; Unit- claim interest Williams v. accused must place thing States, U.S.App.D.C. 161, ed seized.2 searched or the avail is is reason rule only Fourth able to the one whose standing Having accorded rights to have are claimed Amendment objec- would nevertheless overrule is, may pro violated; evidence, I think the because tions to the against him of evidence ob test the use of was in violation of seizure the violation tained rights. constitutionally protected There privacy no es someone But it else. cause, police commenda- part of the rule that accused sential bly a search warrant from obtained prosecution If the must himself. accuse magistrate, properly obtained possession claims that the accused was evidence. seized or of contraband or other control matter mentioned. One other should be articles, evi and seeks to use same Appellant he that was denied contends standing against him, surely he dence has right question to an informer on object obtained to that the evidence was given reliability of issue of information constitutionally pro in violation applied for the officer who the search to purpose rights. of tected Otherwise the present I case think warrant. does Fourth Amendment the rule to make the justifies any present error which not effective, of free federal trials and to proceedings because of this mat- constitutionally violations of fruits of obligated pro- was not to ter. The court substantially

protected privacy, would be informer, no continuance duce the frustrated; fundamental could be requested to was to enable defense recourse the vic so. because do without violated guilt, where, as in affirming concede conviction, not join

tim did I in enough Judge say case, possession to estab- to that am authorized this example, opinion, painstaking of the cases is review dissenting opinion our in Jef A 2. See U.S.App.D.C. States, of Mr. fers v. contained United 498, 58, in Harris U.S. 48, Frankfurter affirmed 342 Justice 1098, 145, 155, 93, case, 67 S.Ct. L.Ed. 59. In that how See, 1104, also, question present ever, L.Ed. 1399. was not in standing emphasis opinion's the Act of June reference volved. On 228, 165, 1917, ownership 15, at 331 U.S. 40 Stat. claimed accused of seized, property which made un also to establish in interest searched. Judge Although filed, EDGERTONand WASHINGTON no affidavit was defense join opinion. in this counsel did He not abandon the matter. diligent ap- made efforts obtain Judge (dissent- BAZELON, Circuit pearance of the informer. When the ing). morning case was resumed on the of Judge Fahy agree I with March the court: told challenge validity standing your please, “If Honor rec- (See discussion the search warrant. ord, your Honor will recall on dissenting opinion my standing in issue Wednesday there was disclosed v. United in Christensen the Court and counsel that name 37-44, U.S.App.D.C. of the informer for the search war- majority 194-201, did wherein the Jacqueline Johnson, rant was issue.) not I would But reach that not pursuant to what I said in court validity question decide the Wednesday attempted I find . instead, case; this warrant in the search Jacqueline through Johnson the me- to the District I the case remand dium of the bondsman. reconsideration Court for “I learned on bond she was opportunity affording appellant full after through a Mamie I Robinson. arresting challenge the and assistance Goldsmith, talked to Joe is the who cause, upon officer’saffidavit agent Robinson, for Mamie who told issued. warrant which me that he did not know the address (For role see informer’s discussion Jacqueline Johnson because petition my for leave statement fact said she she had both- pauperis Anderson appeal in forma police ered and she didn’t U.S.App.D.C. States, 105 Jones v. United want to disclose it and he didn’t 326, 266 F.2d 924. it, want to know but she inwas arresting name revealed the through touch one of his men. Jacqueline informer, Johnson. get “I him asked telephoned in- touch she testified that Jacqueline Johnson that manner his affi- he based formation which and he pres- informed me he would. know her but that davit morning although Jacque- o’clock at nine he did know she ent address line Johnson called me and would narcotics case. in another free on bond give thereupon me her address. I told her stated to the Defense counsel that she was wanted here in this Court: morning. court at eleven o’clockthis Honor, time, Your “At request the Court to issue “She she would be but here appearance subpena she wouldn’t eleven; here she attempt I Jacqueline will Johnson. try would to be here at twelve. And go address, and I will find the that is the situation. through gamut of the bondsmen “I everything have done I can as out who has afternoon find this counsel to learn the whereabouts of finding bond; ad- and once her Jacqueline Johnson and that is what dress, I ask the Court to issue a sub- up I have come with.” pena her.” At morning’s the conclusion of that day’s day, at close of the same On the session, following occurred: requested session, counsel defense subpena, : Counsel] and was advised “That is all [Defense of a issuance have., your Honor, subpena excep- would issue I with court filing poverty.1 affidavit of from upon tion this wit- poverty, family; only $60.00; defense coun that he received matter 1. On the expected appel was without that he lant’s “wife has more since that stated sel just gone funds; was retained that counsel relief.” diligent cause; Johnson, that counsel made not able ness, Jacqueline who is testimony; that, effort her to obtain present time. here light that announcement the court’s telephone this morn- "But on Aiken, counsel believed Officer defense testi- her that she did indicate reasonably ef- could assume further that contrary completely mony be would forts would be futile. Government to. has what testified suggests possibility court that all the is material. I do feel that she So meant was that its announcement it *(cid:127)»*(cid:127)*->:-* postpone proceedings not Well, adjourn “The I will Court: testimony. Even obtain the informer’s [Emphasis supplied.] 2:30.” until adoption speculation would not opened, session afternoon When the my necessity re- for a alter view the court: counsel stated to defense integrity of administra- mand. The arrangement per with coun- “As justice required criminal tion of your please, sel, I waited if Honor opportunity as- the Government’s —and [12:30?] until 12:03 here sistance, obtain this —to informed witness and the courtroom testimony. matter is critical Unless this between here me she that case, upon a clarified remand of did not 12:15 she twelve impossible square repudia- seems up. show ground informer, that tion of through witness, Mr. “I Smith re- understand she is not a credible with through possibly inadver her liance information as a basis son misrepresentation sustaining I amade tence the warrant. tell did witness Court. The morning that she didn’t me this say The witness did Brandon. know had she

that the conversation Aiken Officer to; she Aiken Officer did tell him that testified Pop- Brandon and make cotics. didn’t tell Eye [Emphasis "She also coming telephone supplied.] to town she calls to him.” ^[2] she didn’t and she nar Fred A. Joe Interior, SEATON, Secretary of the HAYES, Appellant, No. Appellee. Appeals United States Court of responded: To which the court District of Columbia Circuit. “Well, I I Officer Aiken. believe Argued 18, 1959. March she don’t believe her now. believe July Decided just tell him as he testified.” Rehearing Banc en Denied Petition ended. matter Thus the 5,Oct. least, much, foregoing so From counsel, whose me: clear seems good challenged, rep- has not faith testimony informer’s resented materially Offi- that of contradict prob- upon critical Aiken cer in support. 2. Counsel trial counsel was filed larit’s appointed wo filed affidavit of the pauperis in forma The Government appeal tills prosecute opposition. transcript reporter correct court a motion filed changing dispute word to be resolved by underscored tlie leave record, by meaning the informer hear- “they,” “she” the remand I would by appel- order. An affidavit Bill.” “Pop-Eye

Case Details

Case Name: Sherman Brandon v. United States

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

Date Published: Jul 9, 1959

Citation: 270 F.2d 311

Docket Number: 14464_1

Court Abbreviation: D.C. Cir.