*1 though ness the record issue. Even appellee
suggest the statement voluntarily,
Regina Ward was made we
not free to rule on the basis of our own v.
appraisal of the evidence. United States
Goss,
(6th
1973). The
voluntariness of Ward’s
statement the trial to be determined Bernett,
judge. supra, United States 365, 495 (Robin
U.S.App.D.C. at F.2d at 945
son, J., dissenting part).
Accordingly, suppression order
appellee Tyrone statement is re- Ward’s for trial.
versed and his case is remanded Regina suppression appellee
The order of upon prin- statement Miranda
Ward’s based
ciples is remanded is reversed and her case finding by judge
for a the trial as to the
voluntariness of her statement.
Reversed and remanded. STATES, Appellant,
UNITED MINICK, Appellee.
Willie L.
No. 81-55. Appeals.
District of Columbia Court
Argued July 14, 1981.
Decided Dec. Opinion
Rehearing En Banc Granted and 13, 1982.
Vacated Jan. Atty., Farrell, Asst. U. S.
Michael W. C., F. C. with whom Charles Washington, D. Terry and Ruff, Atty., and John A. U. S. Gordon, Attys., Wash- Asst. U. S. D. Steven brief, appel- C., were on the ington, D. lant. Kohlman, Defender Ser- Public
GaryW. C., J. with whom Silas vice, Washington, D. Ogletree, Pub- J. and Charles Wasserstrom C., Service, D. Washington, Defender lic brief, appellee. were on the *2 NEWMAN, Before Judge, courts, Chief discovered and near the twenty- tennis FERREN, KELLY Judges. and Associate forty five to feet from Phillips where Mr. had seen the man cap. in the white skull KELLY, Judge: Associate Bryant partner, Detective and his Detec- April indictment filed Brooks, tive arrived at the scene at 1:20 a. appellee charged murder, was felony later, m. A Bryant few minutes was told D.C.Code rape, and § D.C. that a brown wallet had been discovered motion, Code By pretrial 22-2801. § approximately twenty-five away feet appellee sought to govern exclude from the deceased, body along the course ment’s as fruit of an unlawful cap the man in the white skull had taken. home, warrantless into his items However, opened wallet was not seized from person his and from his home as thirty-five forty another minutes while well as statements made to the fol technician, the evidence Muncey, Officer lowing his Judge arrest. E. Carlisle Pratt m., completed other tasks. Around 2:00 a. granted the physical motion as to all evi Muncey Officer extracted from the wallet dence seized and as to an oral statement Minick, the driver’s license of a Willie L. by appellee made in his home at the time of Street, S.E., residing at 3939 R an address arrest, his but denied the motion as to an five blocks from the scene of the crime. exculpatory written given by ap statement This immediately information was forward- pellee, later, an hour at the station. ed to Bryant Detectives Brooks and who We affirm the trial court order from which also learned within minutes that the de- government appeals.1 strangled sexually ceased had been and as- Detective Bryant Earl C. was the saulted. witness to testify suppression at the hear- ing. The testimony substance of his The detectives on un- is re- remained the scene m., counted here detail to show overseeing continuing the evidence til 4:00 a. upon which the trial ruling. court based its suspect. search for evidence As fruitless, proved their efforts returned approximately m., At 12:35 a. on Febru- to the homicide branch office 300 Indiana ary 27,1980, police telephone received a call Avenue, Bryant N. W. Detective then Phillips (a from a Mr. security guard), who joined Muncey Officer who had retained the reported that a man and disap- woman had wallet, together lost they examined its peared into the woods apartment behind an (for period minutes) contents of 15 to 20 building Terrace, at 2135 Suitland S.E. ownership. to ascertain its Most of the Two officers were sent to the scene to in- items found bore the name of Willie L. vestigate. They spoke Phillips with Mr. Minick, although some were identified as who described wearing the man as a white property of a short, Meyers. Patricia Mean- cap skull and a dark brown coat. while, area, Detective Brooks had checked While the searching officers were Phillips Mr. records and discovered that a noticed Willie Minick walking the same man alongside courts, with the edge the tennis same birthdate and address as the near the woods, Minick and alerted Willie whose driver’s license the officers. The chase; unsuccessfully gave prior rape officers had recovered had a conviction however, they eluding prior rape noted that and a arrest record for a commit- sub- ject Terrace, was dressed in a jacket, brown dark ted the rear of 2135 Suitland pants cap. and a white skull body King A short while location where the of Suella was thereafter, King descriptions Suella discovered.3 The Minick 1973, 23-104(a)(1). Bryant Phillips 1. D.C.Code § admitted that said the man ini- tially walking along the tennis courts. Although pretrial hearing at the Detective Bryant judge evidently testified on direct examination that the trial 3.The misunderstood De- running Phillips Bryant’s testimony man was when Mr. saw him tective to be that Willie alone, again, cross-examination, rape Detective Minick had been of a in almost “convicted be hand- Appellee awoke to the room. license records and on his driver’s rights. The Miranda read his given cuffed and descriptions with the were consistent appellee and searched officers then white Phillips Mr. of the man in the recovered, among other premises, Detective Brooks cap. By skull 4:30 a. and, jacket items, brown keys, a set partner. to his relayed this information kitchen, blood-stained a white from the suppression hearing testi- According to the work was his appellee said smock which two “then mony Bryant, of Detective *3 also appellee Upon questioning, smock. case, and . . . the facts of the discussed he pants black tee-shirt and stated that the that we physical went over the evidence been clothes he had had on were the then there, . point, and at that . . had observed their Half an hour after wearing day. to go decided to to the R Street address ... home, arrival, appellee’s left the officers Mr. Minick.” The officers arrest considered where headquarters escorting him to warrant, obtaining a but decided first combings photographed and appellee was against it because were afraid to lose area, pubic his head and were taken from “dirt, clothing such as . . . ex- from his were removed twigs and dirt hairs, change anything of that would At 5:55 a. Detective and knees. hair with the victim.” Detective show contact his advising appellee anew of Bryant, after Bryant testified that their decision to effect him and began questioning rights, Miranda based on the fear a warrantless arrest was written, exculpa- signed, appellee’s obtained go down the that such evidence “would tory statement. His testi- drain with a shower or a bath.” quickest he had ever mony was that hear- suppression At the conclusion two and gotten a warrant was between ruled that the warrantless Judge Pratt ing, February not state three hours. The detective did home on entry appellee’s sought 1980, to obtain a his Fourth many how times he had in violation of was during night, physi- nor that two to all rights; consequently, Amendment generally person three hours was known to be the from his evidence seized cal trial.5 average time for such a task. On would be excluded from home cross-examination, Bryant Detective admit- York, 445 U.S. Payton v. New In partner ted neither he nor his as- (1980), 63 L.Ed.2d 100 S.Ct. judge sign certained which available to the Fourth Supreme Court ruled that emergency warrants on an basis on the from mak prohibits Amendment 26-27, night February 1980. and nonconsensual ing a warrantless
Appellee
felony
was arrested in his home
arrest.
of a routine
purposes
is
morning
argument
in the
here
approximately five o’clock
sole
government’s
The
appellee’s
February
on
1980. His sister
the warrantless
felony
routine
response
repeated
effect a
opened the door
home was not
exigent circum
and,
observing
justified
officers
knocking,
five
arrest but
are to be
sides,
stances,
stepped
as those circumstances
guns
with
drawn at
enunci
factor test
asleep
the seven
appellee
assessed under
back. The
then saw
States, 140 U.S.
v. United
entered
ated in Dorman
just inside the door and
in a chair
her
be found on
place.” Bryant’s description
or fibers would
hair
the same identical
v
ambig-
police record was somewhat
assailant.
of Minick’s
previous arrests and one con-
uous:
“[he]
addition,
appellee’s
rape,
oral
occurred in
and one offense
held that
viction
the court
5.
following
Appellee points
in his
arrest
area.”
out
that same
in his home
made
statements
guilty
government’s
the earlier
brief that he was found not
from
must also be excluded
rape.
preceded
waiv-
a valid
Arizona,
Suitland Terrace
because not
rights
Miranda v.
his
under
er of
(1966).
16 L.Ed.2d
impressions
86 S.Ct.
and debris
U.S.
of knee
Observations
expressly
government
refrained
has
near
crime,
deceased’s
at the scene
ruling
challenging
portion
legs
of the court’s
well as
fact that her
dirt,
wide,
appeal.
spread
the officers that
indicated to
banc).6
App.D.C.
(1970) (en
Attorney,
procedure
get
The remand
set forth the cir
*4
grave
there was a
offense involved.” An-
cumstances
opinion
which in the
support
per-
other factor which could
Judge justified
District
Dorman’s arrest
missibility
entry
is the officers’ rea-
without a warrant as
follows: The
suspect
sonable belief that
was on the
had positive identification of
eye
three
premises.
finding
respect
The court’s
witnesses,
with
positive
evidence of Dor-
factor,
to this
in
fourth factor
the Dor-
man’s current
They
address.
had reason
list,
note,
man
entirely
not
clear.7 We
might
to believe Dorman
flee when he
however, that while it is true that at the
became aware
probation
of the loss of his
papers
time the officers decided to make the war-
identifying
They
him.
knew Dor
arrest, they
special grounds
rantless
had no
man and his
dangerous—
associates were
home,
appellee
to believe
would be at
were armed
physically
and had
plainly
entering
saw him there before
abused
his
their victims. The
most
opened
residence when his
place to
sister
the door.
p.
find him after 10 m. was his
home.
Judge
The District
credited their
peaceable though
The
nonconsensual en-
testimony that
the only purpose of the
factor,
try by
is another
not
visit to
They
his home was to arrest him.
court,
specifically
addressed
the trial
but
physical
needed no additional
evidence.
subject
dispute,
supports
which
States,
supra
at
[Dorman
entry
reasonableness of the
under the Dor-
they immediately applied for a to be suspect of a not known the seizure they expectations had reasonable armed, over urgencies that attenuate They they would have it five o’clock. suspect time, evidence or either because the made no effort whatsoever to obtain a already, because likely disappeared has warrant, but, instead, o’clock, they at five probably and location have their existence decided that the circumstances quo position.10 attained a status going without a warrant. There flight and destruction of Both was no reason to believe that if the De- readily accomplished in this could have been fendant, going or the discovered the case before the even bathe, that he had not bathed five police must of the wallet. The contents per- morning. o’clock in the It’s no more possibilities since aware of such have been if they suasive than had decided a man whom given chase to going April rather than January wallet the owner of the believed was both greater possibility because there was a was thus and the assailant. better; but, go, sooner you his tracks and were on alert that generalized reason- some rather had been most realized that ing, there was no reason to believe that. discovered, possibly also that his wallet So, the Court does not have to address fleeing or intent on been found. If he was as to itself whether or not evidence, the reason he had all destroying right would have a to make a warrantless immediately, do so if ever. in the world to purpose seizing for the on one The likelihood that he would decide when there was no cir- realistic every or the other course diminished preserving cumstance for it hour, exi- thereby reduced the passing preserved by had been the time gency present that would be in a situation right private went in. The of a *6 the was known pursuit, of hot or if dwelling is a sacred trust that should not armed. to be except upon exceptions be invaded to the requirement. warrant that “there judge concluded The trial exigent circumstances for no realistic were government charges by suggest- had preserving or evidence] [the ing police applied that the should have police] the time preserved been [the m., “in warrant at 2:00 a. the trial court improp- holding, he did not in.” In so went investigations effect ruled that the further view of what was erly substitute his “own police engaged in which the here undercut judgments of prudent” for the probable and time when exigency their claim of at the scene, the experienced police officers on the proceed appellee” did arrest In evaluat- alleged by government. as puts quandary of police in the warrantless ing validity having test to risk failure of the Dorman objectively re- no more than the court did probable either for lack of clear cause or for officers “in- known to the view facts dissipation exigency. But the trial cluding factors” to determine the time court cannot be faulted for the inverse rela- police of- true, and cautious prudent whether “a tionship of these two factors. For it is reasonably have concluded passes, probable cause to arrest ficer could dangers beyond presents belief that the is armed other contraband Reasonable flight inher- and destruction of evidence or there is contraband evidence to be risk of ent in every police exigent able where the are not toll cir- case seized the attenuation swiftly wrongdoer(s). weapons apprehend presence cumstances since the
211 entry immediate imperative.” description .. . was ick’s police in the file matched a States, Chappell v. United U.S.App.D.C. description leaving 119 witness’ of the man 356, 359, 935, 342 F.2d 938 Its point, police find- scene. At that were satis- ings error,11 but, reveal no clear probably fied that Minick had committed contrary, fully support grant appel- the crime.
lee’s motion suppress. agree We that the
government failed in this case to meet its
II.
heavy
showing
burden of
“that there was a
police
If
to seek a
cause
need that could not
delay
brook the
incident
m.,
2:00 a.
be faulted
at
can
to obtaining a warrant.” Dorman v. United
declining
proceed
that soon? See
States,
320,
supra at
“clinches” the
have
time,
they
privacy
because
court could find
which
upon individual
—intrusions
cause,
probable
to ob-
since the advent of
police investigate
if the
fur
may not occur
Alternatively,
tain a warrant.
assume that
Whitfield,
203
ther.
United States
police
obliged
seek a warrant
are not
136, 142
U.S.App.D.C.
629 F.2d
until,
judgment,
in their
reasonable
denied,
1086,
(1980), cert.
101 S.Ct.
U.S.
ready
are
to do so based on evidence
(1981); Campbell, supra
develops, judgment is typically a difficult Dorman, supra, the court identi- InA. Campbell, call. F.2d United States v. making evalua- criteria for 1978). Second, fied seven (2d approach Cir. easily disposed here. Al- Five are warrant as tion.3 forces the to seek a for a conclu- though is no record basis they arguably soon as cause there sought by telephone, but deliber a warrant 1. There is no indication that the authorizes necessity Super.Ct.Crim.R. ately stalling our 41 does not. to avoid the obtaining Compare States v. a warrant. United Jones, 1980) (8th Lindsay, 635 F.2d 1361-62 Cir. in United States 3. As summarized Houle, U.S.App.D.C. States v. 603 F.2d (8th 1979). (1974), the Dorman criteria are: involved, (1) grave partic- is That a offense analysis foregoing significance 2. The violence; ularly a crime of diminished, eliminated, were it would be if not reasonably (2) to be believed possible our rules to obtain war under local armed; testimony rants “based on sworn oral commu cause; showing (3) a clear *8 by telephone,” Robin nicated United States v. (4) strong to believe that the sus- a reason son, 351, 358, U.S.App.D.C. 174 533 pect dwelling; inis the (1976) (en banc). expeditious 585 availa swiftly Such (5) escape if not the likelihood bility presumably of a warrant would cut down apprehended; on the need to invoke the circumstanc (6) peaceful opposed to a a many exception “breaking”; es in cases. Fed.R.Crim.P. and 41(c)(2) (Warrant testimony) upon day). (7) entry (night oral now time of or the “suspect sion that reasonably They strong be- had reason to believe the [was] armed,” lieved to be id. at 435 F.2d at suspect premises. They was on the had— obviously grave one, the offense was a they may suspected might that he strong there was reason to believe that escape swiftly apprehended, if not but home,4 peacefulness Minick was at and the support there are facts to that conclu- of the entry offset concern that developed hearing It sion. at the night.5 entered at long period as to how or short a of time criteria, This leaves the other two which address, he lived at the or if the (1) are determinative here: “a clear show time, any knew that at or ing cause ... to believe that attendant facts. There is no evidence suspect crime,” i.e., committed the a that the identification of the Defendant showing greater than “merely the minimum truly incriminating place, in a found warrant, cause” required for a they or that must have assumed it was 320-21, 435 392-93; id. at (2) F.2d at “a found there. suspect escape likelihood that the will if not swiftly apprehended." Id. at 435 F.2d so, Assuming things these to be particular at 393. Of relevance is this very admitting candid in expansive latter, court’s escape view of the purpose going their in at that time with- circumstances, criterion: “Under limited one, getting out a warrant was twofold — the ‘likelihood escape’ inquiry properly experience, prior at that time of includes consideration of probability morning, they the earliest have been able that evidence as well suspect may as the get a warrant is two or three hours. States, lost.” Brooks v. D.C.App., inconvenience, I’m not sure that it anwas (1976) (footnote A.2d omit they ordinary or felt that interfered with ted); States, see Thomas v. United D.C. App., police work. 352 A.2d They they also went because discovered officers testified that once they had pursue sufficient cause to Minick appeared what to be knee marks in the they because, did not seek a warrant decedent, legs dirt between the experience, their it had taken two or three they get wanted to to the Defendant hours at morning, that time of the they before he had a chance to remove the dirt “dirt, losing feared evidence such as cloth- by bathing They discovered whatever. ing, hairs, exchange . .. anything these facts after 1:30 and be- sometime would show contact with the victim.” morning. fore two o’clock in the analyzed The trial court police expla- frame, Taking using had their — nation as follows: warrant, they immediately applied for a very It is question proba- close expectations reasonable had ble cause. Undoubtedly they proba- They would have it five o’clock. warrant, ble cause for the issuance of a made no effort whatsoever to obtain a but whether reasonably trust- o’clock, warrant, but, instead, at five worthy information to believe that decided that the circumstances suspect committed the over and going without a warrant. There requirements the minimum
probable cause, is
if the De-
doubtful.
was no reason to believe that
(1970)
U.S.App.D.C.
4. The trial court
435 F.2d
found that
“had
Volz,
strong
banc).
(en
reason to believe
496 F.2d
was on
But see Fisher v.
premises.” Although
(3d
1974) (requiring “probable
a witness saw a man
fleeing
from the scene of
di
the crime
is in the
to believe that
cause”
dwelling,
rection
“strong
different from the direct route to Min
reason”
defined as more than
home,
ick’s
the fact that he lived
five
so).
believe
away
blocks
and the fact
the incident
early morning
occurred in the
hours combine to
appel-
Nighttime
enhanced
likelihood
give
strong
reason for
he would be
lee was home.
at home. See Dorman v. United
*9
it,
fendant,
therefore,
going
As I see
court
or the
the
did not
to
bathe,
that he had not bathed
five
probable
finding.
cause
make
discernable
morning.
per-
o’clock in the
It’s no more
make its
accordingly
This court
must
own
suasive than if
had decided
whether,
of entry,
evaluation of
at the time
going
January
April
rather than
showing
probable
was a
of
there
“clear
there
greater
because
was a
possibility
(f.e.,
“minimum”)
well beyond
cause”
the
to
better;
you go,
but,
the sooner
that
that Minick had committed the
believe
generalized
some
beyond
rather
reason-
Dorman,
supra
crime.
was no
ing, there
reason to believe that.
392-93;
I am
supra.6
see note 3
satisfied
So, the Court
to
does not have
address
there was.
that
as to
itself
whether or not
right
have a
to make a warrantless
factor, possible
As to the
loss of
C.
final
evidence,
purpose
seizing
for the
of
that no
the trial court found
exi-
when there was no realistic
cir-
m.,
gency remained
a.
when the
by 5:00
preserving
cumstance for
it
apartment.
police entered Minick’s
The
preserved
had been
time
stated,
no reason to be-
court
“There Vas
right
private
in. The
went
of
of a
Defendant,
that if the
or the
lieve
dwelling is a sacred trust that should not
going
bathe,
to
he had not bathed
except upon exceptions
be invaded
to the
morning.” Perhaps
by five o’clock the
requirement.
warrant
exigency,
the court
a result
cause,
probable
B. As to
the trial court’s
only
its
thus dealt
inquiry
curtailed
appears
analysis is inconclusive. The court
evidence;
specifi-
did not
with evanescent
it
say
probable
cause
“had
for
concern
cally
address
about
the issuance of a
at 2:00 a. m.
warrant”
suspect’s clothing.
applied
“immediately
should
warrant” at that
time. But the court also
making
presuma-
finding,
its
the court
later,
suggests that three
at the
hours
applied
following
test: whether at
bly
reasonably
“whether
reasonably
a. m. the
officers
5:00
trustworthy
information to believe
there
substantial likelihood
concluded
was a
crime,
suspect committed the
over
be-
prem-
on the
critical
was still
proba-
minimum
yond
requirements
lost,
and would
absent
immediate
ises
be
cause,
analyses
is
Both
ble
doubtful.”
can-
Brooks,
at 1303 &
See
n.3.
probable
If
not be correct.
there was
cause
for a warrant at
a. m. based on
2:00
evanescent evi-
When we focus on the
discovery of the
Minick’s
wallet and
driver’s
dirt, hair, and other
dence
de-
involved —
license,
showing
obviously
there
was a
accept
it
believe
is fair to
trial
bris —I
probable
cause
the “minimum” at
premise
court’s
this evidence can be
4:30 a. m. when
discovered
govern-
easily.
off the
washed
conviction, arrests,
prior
and identification
ment,
all,
argue
after
traces of
did
If,
hand,
evidence.
on the other
there was
evidence will remain undisturbed for
such
“minimum”
at 5:00
cause
a.
hours,
effort to clean the
despite
several
m. to believe
had committed the
Minick
clothing,
to the
there is no
body.7 As
obvi-
there could not have been
Thus,
impediment
disposal.8
its
ous
for a warrant
a.
before the
cause
at 2:00
clearly
trial court
question is this: did the
substantial,
discovered the
addi-
effect,
finding,
reasonable
evidence.
err in
tional
ly
likely
Appellate
washed
to remain until a
is
off are
deference to the trial court
limit-
findings
fact.
ed in this context
is
available.
States, D.C.App.,
Brooks v. United
367 A.2d
dispose
likely
difficult
be more
8.It
evidence, however,
clothing than the
other
argument
7. An
that traces of tell-tale evidence
apartment
may require
tripa
if not
it
out
scrubbing
to remain
could
building.
out
prove too much.
traces cannot easi-
Whatever
*10
searching
criminal,
officers,
knowing
police
the
police
5:00
would have to
at
a.
assailant,
incriminating
will wash all
going
conclude
if Minick were
to
for
that
.ever
dirt, hair,
body, and dis-
debris off his
so,
and
assuredly
do
he
had washed all the loose
assault,
during
clothing
the
pose of all
used
disposed
evidence off his
and
of his
(if he ever is
hours of the crime
within 4V2
the
clothing
tell-tale
within 4Vá hours of
Robinson, supra at
See
so).
going to do
crime?
these rea- court’s officers acted conclude that “finding” evidence sonably as to the loss of evidence was that critical within premises actually legal in the nature of a conclusion: to be on was still crime, every pass- but that there not have been circum- hours of the could 4V2 possibility.12 every jeopardized ing stances at the time of because moment has a mistake firm conviction that crime definite and 9. reflects that soon after the The record police unsuccessfully States v. United United chased a been committed.” 364, 395, Co., Gypsum U.S. 68 S.Ct. a woman into States identified as the man who took Minick, therefore, See note 8 Although 92 L.Ed. the woods. running police, supra. there is no been missing evidence that he knew his wallet Dorman, supra, said that after the court 11. In or that he would to believe the have reason dealing him, with were still police, caught hours up “[t]he four who had a never crime, prompt relatively arrest recent identity. clue to his might instrumentalities recover the locate and acknowledge wrong dis crime before otherwise 10. I if I am fruits of the —if 321, 435 only fact-finding posed hold F.2d at trial court is could not of.” Id. at —I clearly the court erroneous as to the evanes- speculative whether way disprove it is 12. The fact cent for there is no destroy contrast, all evanescent analysis. I would be criminal the court’s during incriminating holding clearly evidence and other comfortable erroneous does not dimin- the crime implied finding hours after must have first court’s that Minick 4V2 pursuing as urgency such disposed clothing hours of the ish of his within 4‘/2 agree trial quickly possible. with the I “on I have “the the entire evidence” that, slowly justify Accordingly, given I our moved too a warrantless conclude considering standard of review and all the suggested entry; no one has factors, Dorman a warrantless in 20 minu could have obtained a justified at 4:30 a. m. Compare Niro v. tes.15 *11 536, 1968) (war- 535, (1st 539-40 Cir. IV. entry rantless unlawful where officers de question, There is the finally, whether the time layed more than 12 hours between police exigent circumstanc —confronted stopped accumulating evidence and they es at 4:30 a. premises m.—entered the with Forde, seizure); supra 329 at delay.13 out unreasonable Even when the (same; de N.E.2d at 719-720 three-hour met, Dorman criteria are the court shall not 821, 823-25 lay); Dunlap, v. 395 A.2d State unexplained police excuse the failure of the (Me.1979) (same; delay); 15½ hour State procure to they unreasonably a warrant if Beede, 620, 629, 406 A.2d 131 119 N.H. delayed investigation entry. their See denied, (1979) (same; delay), cert. one-day Chuke, United States 554 F.2d 64 L.Ed.2d 445 U.S. S.Ct. (6th 1977). exigent “The essence of Cir. (1980). circumstances is the lack of time to obtain a thwarting warrant without the arrest or making dangerous. it more Where time V. adequate, failure to obtain a warrant police conducted their summary, In Latzer, not be should excused.” Enforce investigation delay reasonably without Workshop: ment Police Entries to Arrest they clear cause to concluded York,
-Payton v. New 17 Crim.L.Bull. They pursue Minick at 4:30 a. m. confront- justifying a war- exigent ed circumstances police There is no indication that de- home at time. rantless of his liberately unreasonably delayed stalled They unreasonably delay; they en- did not investigation their necessity to avoid the a.m., dispatch 20 minutes tered with at 4:50 obtaining supra. a warrant. note 1 cause determining they had sufficient From the time learned of the crime They reasonably to do so. could m.) (at until the decided 4:30 a. during expected to obtain a warrant been arrest, police continually make the very every interval. At critical this short engaged accumulating in evidence. therefore, juncture, police decisional unreasonably delay police Nor did the properly. acted apartment They entered the affirming suppression of evidence on m.,14only and arrested Minick 4:50 a. at circumstances, my ground exigent of no concluding they minutes after had suffi- police account- colleagues in effect hold the simply cient cause to do so. There is argument police failing proceed against Minick room for an able for court, court, however, point majority, reflecting 14. The the trial re- there will come a say approximately where one would in have to “at five o’clock fers long morning.” However, waited too after the contrast ac- Ante at 207. waiting long proba- record, cording too after a to the Officer cause, ap- ble to claim Bryant’s testimony, arrived at obtaining present lieu of case, a warrant. In the proximately 4:50 a. m. point. we have not reached that for the 15. that it was reasonable Given inquiry question is the whether 13.Akin this against Minick 4:30 a. m. and not to move until prevented exigency. could have minutes, I within 20 did so thereafter Rosselli, See United States v. 506 F.2d reasonableness of the need not consider the (7th Here, 1974). could not have that it would officers’ undocumented assertion so, placed guard done for even if at get a warrant. or three hours to take two door, they prevented Minick’s could not have Brooks, supra destruction of evidence. See therefore, decision Ironically, earlier. this ORDERED that appellant’s petition for encourages the to seek warrants —or rehearing en banc granted and that the December opinions even to warrantless entries— perhaps judgment make deroga- marginal, is this Court are hereby when cause vacated. The Clerk Superior Court directed to privacy rights and freedom tion return Court the copy certified Whitfield, unreasonable seizures. See the opinions judgment heretofore trans- supra 142; 629 F.2d at Campbell, mitted in lieu of mandate on January at 27. 1982. It is ruling re- trial court’s should be versed. FURTHER ORDERED that the Clerk shall schedule this argument matter for NEWMAN, Judge; Before: Chief *12 before the sitting Court en banc soon as KELLY, KERN, NEBEKER, HARRIS,* business permits. Court Counsel MACK, FERREN, PRYOR, BELSON, are hereby provide directed to ten copies of Judges. Associate the briefs heretofore filed to Clerk on or before Monday, 22,1982. February ORDER PER CURIAM. appellant’s On petition consideration banc, rehearing en and it appearing judges majority of this has Court grant voted to petition, the aforesaid it is
* Judge participate Associate Harris did not this matter.