United States v. Gwendolyn E. Johnson

America, STATES UNITED Appellant,

Gwendolyn E. JOHNSON.

No. 71-1715. Appeals,

United States Court

District of Circuit. Columbia 7, 1972.

Argued June

Decided Feb. May 11,

As Amended Atty., Adams, A. Asst. U. S. James Flannery, S. A. U. whom Thomas filed, Atty., the brief was at the time Shaughnes- Terry Brian A. W. John sy, brief, Attys., were on Asst. U. S. appellant.

for Va., Alexandria, Brown, Edwin C. appellee. Judge, BAZELON, Chief Before Judges. TAMM, Circuit

McGOWAN and Judge: McGOWAN, Circuit by the Government’s The issue raised federal prosecution appeal in this 4704(a) offenses, 26 U.S.C. § correctness 21 U.S.C. § pretrial of the trial court’s appel- appellee of narcotics found evidence tail had advised that was a been premises. lee’s hold that the order visitor on We granting suppress appellee’s motion to granted ap The District Court error; was in and we reverse. pellee’s ground, motion on the as stated record, it on search arrest, purse preceded formal January 5, 1971, or about members On and therefore could be sustained Branch of the the Narcotics Metro- ruling Since, incident thereto. on her politan Department Police obtained motion, judge the trial assumed authorizing a narcot- prior appellee existed arrest apartment ics of entire of one James purse, not in search of we need Stewart, subsequently L. indicted as though quire into its existence even appellee. with codefendant The warrant crime for which he believed she could be was issued affidavit which arrested is unclear.1 Neither do we find preceding cited that within two necessary pursue question po- weeks information had come to the placing the formal under arrest lice from a reliable informant that nar- suspect invariably of a criminal is a con being apart- cotics sold Stewart’s precedent dition to a lawful search inci ment, agent January and that on 5 an although arrest, dent to an we note Department judge’s trial view is at variance early In morn- decisions in this circuit.2 do What we ing January 6, approximately seven find is in the circumstances dis Department gained members ac- record, ap closed this building cess to Stewart’s pellee’s purse having was lawful as been and, leaving party outside, some of their scope within proceeded apartment, knocked, to his search the identity pur- and announced their II pose. nearly The officers waited a min- ute, then heard a noise within prohibition of the Fourth ment followed the sound of window Amendment “unreasonable” breaking, whereupon forced the determining searches and seizures. open. door whether under the circumstances gain entry The first officers appellee’s ob- case the purse search of vio apparently attempting served Stewart standard, protection lated that of in escape from the privacy dividual embodied the Fourth apprehended, bedroom weighed against window. He was Amendment must be and, public the bedroom search revealed interest effective law en narcotics, was arrested. respect Other officers forcement with to narcotics vio room, living ap- specific entered question where lations. The for reso pellee sitting found on the couch. lution is whether of the search ap- purse, A was on table a coffee embraced an possession nf_a couch, immediately . front of parent not an oc- n.f_t.ha searched, yielding narcotics, eqpflnt. —n.ramises searched. Al- placed though under enter- arrest. Before the District Court did not ex- ing pressly issue, Stewart’s de- suppres- consider its concerning the record While is silent circumstances constituted lawful deten judge’s thoughts matter, amounting arrest, trial on this tion earlier we had argument appellant oral asserted that held that if the formal “[e]ven arrest thought presence search, crime to be involved was was not made until after illegal long upheld in an establishment. 22 D.O.Code search will so as there is § 1515. an arrest before the begun.” Bailey Brown, U.S.App. U.S.App.D.C. 389 F.2d D.C. 463 F.2d 949 Where appellee’s was consistent im- contained of the evidence sion Amend of the Fourth the demands appellee’s fell with plicit facts, Under these ment. the warrant. without reasonably have—h&Ueved could Turning ele first sought in the war items and described note that the question, we ment of peen in the nurse.3 concealed rant naü separately resting purse of a search was notwithstanding appellee’s as and, status person such, owner. As oUits premises, could have on the a visitor being by appellee and “worn” it was purse items for searched the in nnrsm.t.of not, did of constitute extension thus winch the issued4 warrant to make the search her so as States, 117 United In v. Walker Teller, person. v. her of 600 U.S.App.D.C. F.2d 327 1968); (7th United 494 F.2d Cir. 397 956, 84 (1963), denied, S. cert. F.Supp. (D. Riccitelli, 665 259 v. States (1964), Ct. appellee’s Conn.1966). of The invasion permitted a wallet court lesser therefore a was bag by occu who shared held and subjected if she had been than under pancy of residence searched clothing or search her warrant, holding that a of a by being held her. suggest contrary result “would side of the On the Government’s premises that a warrant information both balance lies simply by the device of be frustrated supporting presented in the affidavit holding up guilty picking and indicating warrant, that Stewart’s here, Similarly frus init one’s hand.” place narcotics apartment was a where purpose should of the warrant’s tration stored; de and the as well as were sold lay, facts permitted reveal not be where preceded suspicious noises likely were to be the executing entry into the officers’ Clay United v. not searched. apparent apartment, effort of (5th Cir.), States, 246 F.2d escape through the bedroom Stewart denied, 863, 78 S.Ct. cert. attempts suggesting window, all (1957); Nicks illegal activity discovery thwart (D.C.Ct.App.1971); States, 273 A.2d 256 being police suspected car was that the Festa, States and dictum empha on With ried out (D.Mass.1960) F.Supp. of the circum J.); Wise, limited sis on the nature (Wyzanski, State (Del.Sup.Ct.1971). presented, hold that we stances precise emphasis purposeful on the belief a reasonable It also 5. Our appellee might-have affidavit, our light context of this case reflects factual view that the narcotics in the nar- located who had been a customer ip purses elsewhere) planed.them apartment (in or cotics and —and purse. allegations of the the central focus issued on warrant —was place the warrant. narcotics where authorized sold; purposes being and affidavit of the and facts shown were narcotics-retailing nature of the seem include the seizure would as to premises premises construction still on the warranted of narcotics placed scope of the warrant sold there customer. had been uphold Indeed, police. our failure Pre-Arraignment vital divert would that construction ADI Code of 4. The Model (Official 220.3(5) narcotics effort Draft No. law enforcement Procedure § un- 1, 1972) to alternatives here involved of a search traffic states that legal practical and from both such as is “reason- wise shall be per- standpoint. things To a warrant mer.ps.in,rn t.o obtain discover n.hhi specified (emphasis added). anyone mitting found on therein.” opening appellee’s purse apart being would, unneces- this case the circumstances, appear necessary sary discovery to be in these of the was so particularity unsupportable lacking supject tlie or-the which were Wise, constitutionally required, see, g., e. search warrant. Moreover, Accordingly, reverse the District we arrested possession suppression, Court’s order of of the contraband immediate- ly discovering mand the case for trial. it and without veri- fying ownership of the I think It is so ordered. sufficiently these facts establish that the in- concurring knew that BAZELON, Judge, Chief vading Mrs. Johnson’s dissenting “reasonable ex- part part: pectations privacy.” The search agree I order was thus not directed at the cannot be sustained the record before owner agree, however, that this us. I do not but at Mrs. Johnson. supports evi- record warrant, dence instead however, was admissible. authorized the hold that purse of Mrs. Johnson’s was, search of an by the search supporting affidavit, was not authorized words the “oc warrant, cupied by for a deter- and would remand John Doe alias Pete described police Negro male, yrs. lbs., mination whether the 49-50 5'6", Mrs. ble cause to arrest Johnson when Complexion.” Medium I do not purse. initiated doubt that this authorized the search of apartment.2 “Pete” as well as his But says specific majority that “The did not authorize a search question for resolution is whether police of an individual knew be a an of the warrant embraced mere visitor in the apparent possession in of a premises of the not Nor, my view, did the affidavit Answering question that searched.” justify contain sufficient information to affirmative, the con- court rules the issuance of such a warrant. The tents of the admissible and revers- Supreme Court told has us “the that es the court. trial protects people, Fourth Amendment not view, my principle majority places.”3 give up One does not that only applicable applies if Mrs. protection by would be simply entering pri- pos- apparent been in Johnson had not Giving vate residence of another.4 ef- she But was. session of personal guarantee fect may to this justify supra, in at 284 A.2d 294. To This the same whether the in- appellee in the warrant clusion quiry expectations based “reasonable investigative require an effort name would privacy” physical or one’s control over reasonably expected to be of officers White, See Effective Con- only seeking and re narcotics owned Seizure, sent & to Search U.Pa.U.Rev. paraphernalia by, tailed and the narcotics (1964). of, occupant. And to detain States, 347, 351, 3. Katz 389 U.S. preserve quo the status while war 507, 511, (1967). 88 S.Ct. 19 L.Ed.2d 576 rant obtained to search Note, See From Private Places to Person- constitute more serious invasion would Privacy: Study al A Post-Katz of Fourth appellee’s privacy than did the search Protection, Amendment 43 N.Y.U.L.Rev. Contrary issue. (1968). Nicks, 258, supra, court permitted evidence to seized States, 347, be Katz 389 U.S. appellant hand there on 88 S.Ct. 19 L.Ed.2d 576 prem aof warrant DiRe, to search the In United States v. 332 U.S. appel ises 222, 225, likelihood 68 S.Ct. 92 L.Ed. 210 destroy sought— (1948), lant Supreme would evidence said, sup- up pressing which the dissent here would seem to pas- the fruits of a search of a exemption hold as an senger in an automobile: requirement, see note 9 says hold The Government infra —we would not only purse, appellee’s person, that contend armed with a war- by the was embraced warrant. only, for a rant residence it could search persons all found in it. . 1. Katz v. How say right then could we that difficult, requirement, any drawing applicable to but warrant make lines happens attempt. individual who be we must make place. states that court first to search would hold that a warrant objects wherever the occupants of an are not individuals who be, might reasonably in- of the warrant only apartment may if issue might cluding places in which believe either cause to establish during be- the moments been hidden any found in the of the search the announcement tween possessed material, or that ment seizable recognizes entry. It then actual possessed certain identified individuals rights those the fourth amendment might The former seizable materials. present merely who are known be established, give example, by balancing applying a weigh test, test. we Under “shooting is, gallery,” place used by- the “invasion” exclusively injection for the of narcotics. rights Govern- standers’ in But did not contain this warrant believing justifications ment’s might from which reason formation might of the warrant ably non-occupant discov infer that to them. been transferred subject ered in the already incorporated re Amendment affidavit the Fourth search. But “reason- requires reliable informant all searches be cited that a selling has, effect, majority de- il reported had that “Pete” “was able.” The drugs apart requirement a is- of warrant licit the leted narcotic within” the pur ment, upon to that (2) probable informant “had cause believe that the sued objects. bystander Ex- drugs past, and such in the the has seizable chased” requirement ceptions are the infor to the warrant officers taken that had in, new, trou- premises, one has a second him mant sent to appears aspect. It that returned narcot blesome with informant any prefaced a one with cause to believe than court has not Probable ics. police non-occupant requirement have found in the that example, possesses believe, that objects for seizable is not estab ble cause to objects that, showing bystander merely by lished that someone seizable has apart of threat destruction has narcotics in the because of Instead, reviewing immediately it ment seized. two or more times. must be magistrate proceeds immediately to a consideration could not have determined degree of the invasion of of the affidavit whether offenders whether rights bystander’s up ninety percent visitors “reasonable.” made searching percent. authority for to the I or know no space individual, he has or which that majority as a seems view this privacy,” expectation of a “reasonable single because, despite the fact probable to believe either without cause people, it that it included two covered a that possesses or he seizable that single doing, place. it constructs so offense.6 exception he a criminal what to me to the has committed is a new fifty transactions would car without a warrant confers even depending occupants greater a far different lattitude have permit. place by be searched was a search warrant would than Bradbury, home, restaurant 109 N.H. store or a See also State vacant patrons. A.2d hundreds weapons present protective A is anoth- 5. The likelihood frish Ohio, Terry engaged in the er matter. is conduct described inextricably is to the related put, are And Walker other uses to which (D.C.Cir. area, U.S.App.D.C. 151, F.2d 597 traffic the amount of majority page 1963), discussed the fluctuations of time. Five or Perhaps temper of re- That, the times course, transaction. cannot be quires change that such a be made. cured at this late date. Perhaps, also, concept personal And, us, limited to the record I before privacy Supreme articulated say cannot the Government has yield must some presented justify facts that would majority ought express- But sult. ly exception search under some to the war- cutting reveal it is back on the requirement. rant This no mere protection hereto- we have weapons frisk.7 There no why explained fore known it and police probable that the ar- necessary. It nor does serve law And, rest Mrs. Johnson.8 while public important to hide this well “emergency” applied doctrine that is change. some cases in destruction looking might here, case apply decide this evidence is threatened existing justifications nothing a search. require- it would add to the analysis, police Under imposed by had two exception.9 ments the arrest ways establishing distinct possession Mere narcotics is to search offense, Mrs. Johnson’s while probable criminal First, was in her control. armed with probable search would have constituted foreknowledge, they sufficient could cause to arrest.10 obtained warrant covered police did have cause to police all her or individuals found believe that there were narcotics apartment. But the evidence ad- Second, in the absence of foreknow- hearing duced at to indicate that they ledge, could have relied possessed Mrs. Johnson narcotics were existing exceptions to the warrant the sounds heard requirement be invoked if announced before themselves and And, cause. gained entry. These were de- sounds they course, could use the information “suspicious scribed as noises” and the they acquired had in their efforts to ob- breaking sound of window. lat- tain a warrant search “Pete’s” ter, probative, likely if even made it less part ment as of their that Mrs. Johnson had narcotics. The probable had that search Mrs. former, noises,” “suspicious simply Johnson. meaningless. Although it is conceivable that further elaboration the character But in this case the directly point of these noises would more yet shown had Al- either. offender, to Mrs. Johnson though the warrant and affidavit recited this record is bare of information. such that place had narcotics transactions taken nothing appeal, was said On this the Government has probability suggested about the that an unidenti- an offense for alternative prem- fied police might discovered on the had participant ises would be a pres- such ble cause arrest Mrs. Johnson: 979, supra, executing (1950). Rabinowitz, commonly the detective cited objects passed proposition, saw for this was “over- California, of the residence to another occu- ruled” Chimel v. 395 U.S. pant. Further, supporting 752, 2034, the affidavit (1969). 89 S.Ct. 685 part fact, that both in- recited of Rabinowitz selling dividuals were that would have a search allowed be- yond residence. Id. the immediate control the arrestee disapproved. Robinson, 153 U.S. 7. See States v. (en App.D.C. 114, States, F.2d 1082 9. See Carroll v. United 267 U.S. banc). (1925). 45 S.Ct. 69 L.Ed. 543 Rabinowitz, Maroney, 8. See United States 10. See Chambers v. L.Ed. S.Ct. illegal establishment, 22 D.C.

ence 1515(a) The record will Code § either, support that assertion developed

few facts negate hearing inference tended knowledge the nature

that she in, see Jones she was establishment (D. States, 559, 560 chargeable C.App.1970), or that she was knowledge by reason of such Cook obviousness of situation. (D. A.2d

C.App.1971). these re- record is deficient judge focused

spects the trial because pre- exclusively on whether majori- As the arrest.11 ceded formal ty notes, been issue should have preced- to arrest reason, I For ed the search.12 direc- remand with

would reverse hearing. new to hold a tions LESTER, minor,

Joseph friend, father and next his Lester, Appellants al., et Robert DUNN, Appellant

H. Searl LESTER,

Joseph minor, et al. DUNN, Appellant

H. Searl

Ann DeLaVal Dunn 71-1879,

Nos. 71-1880. Appeals, District Columbia Circuit.

Feb. 1973. improper. her arrest search was 1 1. : The court ruled Transcript Hearing at 30. to the With reference Defendant Gwendolyn Johnson, E. the Court finds Bailey 128 U.S. possibly (1967) ; App.D.C. 354, did exist 389 F.2d arrest, preceded majority opinion at for her note

Case Details

Case Name: United States v. Gwendolyn E. Johnson

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

Date Published: May 11, 1973

Citation: 475 F.2d 977

Docket Number: 71-1715

Court Abbreviation: D.C. Cir.