United States v. Ralph Johnson

of America STATES UNITED JOHNSON, Appellant.

Ralph 73-2221.

No. Appeals, Court States Circuit.

District of Columbia 14, 1975.

Argued Oct. 12, 1977.

Decided Jan. 20, 1977. June Denied

Certiorari

See En Banc. Rehearing

On Geltner, Michael E. Washington, D. C. (appointed by court), for appellant. Gallagher, Monica Larry Ritchie, J. Wash * C., ington, D. Phillipe Dumont and Arthur * Sapper Grushkow were on the brief for appellant. Gerson,

Stuart M. Asst. U. Atty., S. C., Washington, D. for appellee. Earl J. Silbert, Atty., U. S. John A. Terry, James F. McMullin, Reardon, Timothy J. III and Bar- ry Leibowitz, L. Asst. U. Attys., S. Wash- C., ington, D. were on the appellee. brief for * appearance Entered an pursuant as Student to Rule 20 Counsel of the General Rules of this court. involved, WRIGHT, BAZELON, delay circumstances here nec- McGOW- Before ROBINSON, LEVENTHAL, getting inherent essarily warrant seri- TAMM, AN, WILKEY, ously ROBB, jeopardized public Cir- interest in ef- MacKINNON, fective law enforcement. On the record as banc. sitting en Judges cuit made, agree we with the District Court that by Judge McGOW- the court Opinion showing met its burden of Government WRIGHT, TAMM, Judges AN, in which conduct was reasonable ROBINSON, MacKINNON, LEVENTHAL, meaning within the of the Fourth Amend- ROBB, join. and WILKEY ment, affirm the conviction.1 and concurring by Judge statement Separate

WRIGHT. I by Judge concurring opinion Separate We look to the evidence adduced at the LEVENTHAL, Judges WRIGHT in suppression hearing. day On the first of join. ROBINSON hearing (October 1973), the witness presented by the Government was Officer Judge concurring opinion by Separate Simms, Metropolitan assigned of the Police MacKINNON. investigation, narcotics who testified to by Judge BAZELON. Dissenting opinion following effect. McGOWAN, Judge: Circuit long Not after 1:00 A.M. on June by Sergeant of was informed appeal in this Simms An- central issue just re- (33 Department drews that of narcotics possession a conviction call 402) telephone person of the ceived a who propriety is the § D.C.Code Court, large quantity after eviden stated that a of narcotics by the District denial sup present in the basement of 2918 28th hearing, pretrial of a motion tiary Street, N.W., and it confronted visi was visible police, evidence. The press through lighted in basement window on major narcotics violation bly with a right en hand side of the front of the ultimately made a warrantless progress, partner, and his Officer where such violation was house.2 Simms try into the house immediately Squad, in Betts of the Narcotics place, and the evidence taking investigate report. set out to this Not be- forthcoming in the course of the ensu area, they ing The District familiar with the had diffi- arrests and searches. ing motion, culty finding question arriving the house in Court, ruling against in They the fact there a few minutes after 2:00 A.M. avowedly took into account by driving to ob first circled the house down an initiating procedures police, house, warrant, along observing of the legal alley received advice to one side tain a because, special parked a ’72 or ’73 Cadillac car in the drive- without one in the proceed Although anonymous, 2. the call was Appellant’s of error are the call- two additional claims day, (1) denying appel- identity judge er’s became known the next erred in that the trial (2) judgment acquittal was a witness at the trial. He was one John he lant’s motion for Fudge, testimony admitting witness who testified that he had leased the question, signing points in the lease in the name these had two house The first of G’Schwend. aspects: uncle, Tynes, appellant’s of his Robert with the latter’s that the denial of One was permission. grant The residence was intended for inconsistent with the motion was Livingston, appellant’s judgments acquittal the use of one codefendants, one of in the case court of provided money codefendants, who for the was that the two and the other eventually, jury Fudge proposed support there rent. to live was insufficient evidence clothing possession. abuse of maintained closet, the basement bedroom We find no conviction denying motion for and often used the bed that room discretion in the court’s day. during night On the he called these reasons. As to the second either of police, Fudge way point, was on his into the house to see no warrant for reversal we G’Schwend, testimony change ruling he saw the narcotics his clothes when made. The weight, although perhaps great window. was com- the basement of no petent relevant. as well as Completing house. enroute to the way point, at the rear of the rendezvous and that reconnaissance, they parked parallel further instructions would be relayed by house, and went street in front of point. radio to that Ford called Assistant walkway to the door. up Attorney States Barcella ap- prised him of the situation. Barcella re- so, that, observed As did Simms that, sponded based on his extensive experi- dark, the rest of the house although getting ence in nighttime warrants, right front base- light there was a take a would minimum of to 2 hours to IV2 reported telephone ment window warrant, get a during which pow- time the purpose either to confirm or call. With a der seen would in Simms all likelihood be off the walk negate report, stepped removed. Thus Barcella advised Ford that which was later distance to his —a entry should be made immediately without finally by questioning established suggestion that, warrant. He added the be from two to three feet —and court to likely if there was delay be a from the through the window for not more looked entry first observation to of one hour or What he saw was the 10 seconds. than more, might it be good a idea to look in the sitting with three men bedroom basement again basement window going before in. “cutting a the table was at a table. On paraphernalia other narcotics mirror” and Ford sent this by information radio to the for distribution. preparing narcotics used point rendezvous and apparently also or- white pyramid was a the mirror On join another cruiser to group dered the for high. to ten inches Simms eight powder greater safety. Thus it was that five offi- seeing the immediately realized that he was cers in all returned to 28th It Street. was major a amount of for sale of packaging testimony Simms’ unshaken that not more (later at valued at trial as worth narcotics than 30 to 40 at elapsed minutes most had $85,000). least from the time he looked in the window until danger- he was back at the house with Facing what he believed to be instructions to enter. The cars were left high stakes and some distance situation because ous away, doorways and each of the persons through seen the number of window, house was covered. it was not Simms noted Simms concluded right basement lighted, time. He window was still to force at that practicable light appeared and that a also in one of to their unmarked and Betts withdrew upper portion to reach windows of the house. where endeavored cruiser door, officer, Yates, Betts was at the front and by radio call to Simms and superior their the others went to the kitchen duty. This door. the car in which Yates was knocked first on the screen technical rea- Simms door and was not successful for effort sons, in terms of shouted “Police! Police!” When there they thought risky, it was and destroy response gave no he two or three the inmates of the house to loud alerting narcotics, regular marked knocks on the door itself. When there to summon a calls, response repeated still no to his police. They with uniformed imme- cruiser prepared to break the door in when Officer proceeded Headquarters where diately by tele- Ponzelli told him not to because there was able to reach Yates Simms looking through someone inside out phone. agreed It was Simms glass. person When partner, his withdrew and the Betts would meet Yates and Ponzelli, (Connecticut opened, door was still not was broken in at a rendezvous sledgehammer Avenues) returning to with a which had been Wyoming before picked up by quick on his Simms visit to the 28th house. Street Headquarters. Headquarters raised While Simms Upon entry through warrant with one officer went getting a search question through told floor to let Officer Betts officers. Lieutenant Ford first superior his and two other officers (Ford) would call an Assistant front door. Simms that he him the stairs to the Attorney immediately while rushed down Simms United States suppression hearing When the recon- steps they At the bottom basement. out, Simms, gun his whom men vened some two weeks later on November three found they were while asked, to freeze granted, the prosecutor ordered and was stepped then Simms handcuffed. present Mr. Barcella as a witness. leave to off lighted bedroom into the door open length some about Mr. Barcella testified at first (the which he had room his left nighttime war- procedures getting window). There he through the into looked question, date in rants in effect on the mirror, but with cutting found advising experience his it, itself. powder not the traces powder respect Although to the need for warrants. were the blue and red still the mirror On magistrates approach could on the table tapes, and also package them directly, practice the better was for and the spoons pans, measuring from an authority first to have to do so floor On the paraphernalia. wrapping and, Attorney; Assistant in- United States envelopes and were distribution table deed, ordinarily, would if magistrates strainers. directly, refer him called officer hiding in a was found fourth man A for the prosecutor’s back to the office han- Betts, in closet. Officer nearby basement dling matter. time, a fifth in by this found basement magistrate having duty assign- closet, was found and a sixth bedroom night “quite ment on the lived hamper by the basement hiding in a clothes ways Maryland Montgomery out secured, prisoners six With the stairwell. County,” necessary and it was either to try was made to the basement search para- narcotics While the meet the at the magistrate find narcotics. McDonald’s Res- being in the bedroom were visible phernalia Hampshire taurant at Eastern and New collected, already la- of narcotics bundles within the District of Avenues Columbia or for distribution were packaged and beled go bring out to his house and him back to on the bed. the mattresses between found that so that he could administer the hamper clothes rug near the In an old oath within the District. It was Barcella’s folded, hastily have been appeared to estimate, Ford, by as stated him to that to containing a much bag there was canvas the night question, have done this on in of narcotics.3 larger number of bundles including prior preparation the of the neces- tes- the conclusion of Officer Simms’s At sary papers, would have consumed “at least cross-examination, defense timony and an hour and a half to two hours at the unanimously signified they that did counsel accordingly minimum.” He had barest ad- Lieutenant Ford and to examine not wish vised Ford “if in the estimation of that the any of the other Barcella or Mr. the likelihood of the officers narcotics not entry. Neither participating officers couple there after a of hours was on their own they argument oral did wish fairly high, they I didn’t think would have however, ex- prosecutor, The motions. warrant get time to a search and perhaps Mr. Bar- thought pressed premises to enter the without one.” ought that, any in ought to be heard cella transportation time In addition to event, argument desirable. thought oral involved, the substan- emphasized Barcella last, this the court set an In deference necessarily tial amount of time consumed argument, oral adjourned date for getting together the details of infor- to submit a statement prosecutor asked warrant supporting having mation being at policy the record as for typed as an affidavit. He also described respect to the time of prepar- have certain other forms that magistrates on a availability of the federal meeting with the ready ed and for the 24-hour basis. yielded currency totalling $1000 basement closet also packets room door. The 3. Three up gun. carpet, beneath a a stair were found beneath upstairs upstairs, bed- and behind an couch process tion was such that testifying generally delay as substantial magistrate.4 night- experiences with personal was inherent. many his warrants, range Barcella said that time court, event, permitted two never less than required was time Magistrate put defense to Burnett on the taken 5% hours, one occasion had and on general expe- stand. He testified from his hours. that, the time he rience receives a call hearing on adjourned suppression or an policeman from a Assistant United argument with oral 1 concluded November Attorney, “it takes two to three States favor of by the court in ruling and an oral application if the warrant is sought hours 9, however, November On prosecution. night.” He added that there had been reopen the a motion to filed the defendants which, particular pa- instances in when the hearing in order suppression pers already prepared at the time of testimony by one or more might present him, the the call to time had been as short assertedly relevant magistrates the federal forty-five minutes.5 The witness went them- of whether say range required on to that the of time delays for the responsibility bore selves nighttime experience warrants in his When testified. which Barcella had about had been from hours to the 45 minutes trial, noted the court was called for the case just referred to when the papers were in motion matter that preliminary as a being before the call to him. He testified opposed prosecutor him. The was before that, two, past year further for the what was ground the motion their papers had had order when physi- to show was proposed the defense they presented them to him. magistrates, availability of cal never contended the Government II availa- properly were not magistrates Appellant, found hiding the bedroom ble; indeed, prepared Government closet, of the six persons was one arrested physical the fact of stipulate repre- in the 28th Street house.6 Each was that, applica- when the availability but also suppression sented counsel at the hear- submitted to proper form are papers tion weeks ing. hearing, ap- Several before be ordinar- his action would magistrate, pellant suppress filed a written motion to 30 minutes. What taken within ily drugs narcotics shown, paraphernalia” “all and urged, it was so Government the time of the require- seized arrest. The legal of the that the nature was applica- grounds asserted were that the arrests and respect to the warrant ments with paperwork already This one and 5. That is when is THE COURT: Just second. Q. 4. prepared, forty-five you period have delineated minutes? a half to two hour would be accom- what now? What covers warrant, Already prepared for A. includ- period? plished within that affidavit, ing the the administrative office Honor, Well, record sheet or cover WITNESS: Your sheet for a search war- THE rant, warrant, plus copy drafting search and one of the affidavit would include the itself, already prepared, the search warrant support the writ- of the search warrant used, warrant, ready get typing and the officers are in their ing the words car of the my laying and start home. general of the circumstances out necessary, and administra- the administerial 1973, By 6. the time of trial on November functions, filling out the front such as tion (Harris) fugitive. one had become a Of the warrant, preprinted affida- of the sheets five, remaining Yarbrough Riggins vit, preprinted forms search warrant and the acquitted directed the court at the and correct title of correct address with the Appellant close of the case. Government’s under, you going other ad- violation that guilty possessing found heroin. Nelson were functions, Xeroxing such as the ministrative jury hung Livingston, as to but he magistrate copies enough can so that pleaded guilty to the count in the indict- later enough copies keep copy, you so one have charging possession ment with intent to distrib- you premises, and be left on the that one can Harris, fugitive, apprehended in ute. The inventory enough copies can so that an have 1974, pleaded guilty simple possession to the magistrate. day the next be returned count. 838 4. “The 3:00 A.M.” search was illegal because it approximately

search “at illegal based on an probable breaking “without 1973 were June entry purpose without notice of and au warrant,” cause, and that and without thority required by 18 U.S.C. 3109 § for the failure of the there was “no reason >’7 a warrant.” police to have obtained opposition written filed memorandum appellant’s supporting recited, Government to these motions authorities, four points were points and among other things, Fudge, that “John L. made: lessee private dwelling of a at 2918 28th delay of more than 1. There was a 2V2 Street, N.W., within which the six defend- telephone tip the initial to the hours from ants in this case were large arrested and a and the warrantless into the made a then anony- seized, cache of heroin delay house. “That some would be in- phone headquarters, mous call to police re- not, seeking warrant does volved porting large quantity narcotics in more, justify the without warrantless ar- stating the basement and it could be here.” rests and searches through seen the basement window.” arguendo “Assuming po When the motions came on for hearing, cause to make probable lice had a war defense agreed counsel counsel for rantless arrest when observed three Nelson, Mr. Fogel, Carl could make the individuals, defendants, opening statement position of the defense apparently cutting basement narcotics so, for all of them. He did and his only States, Spinelli v. 393 reference U.S. window observation was [see anonymous “subsequently caller (89 637) (1969); 21 410 S.Ct. L.Ed.2d was unable to at least identify three of the Draper v. United (79 U.S. parties as being in the house at that time.” 327) (1959)] S.Ct. L.Ed.2d there was When he concluded his brief statement to believe no cause that some the court any asked if counsel other wished felony 20-30 minutes later supplement it, appellant’s replied counsel committed or that defendants were in the negative, other and no counsel re- Thus committing subsequent it. sponded. justified search cannot be as incident to a In his direct examination Officer Simms Coolidge v. Hamp New lawful arrest. described his observation the win- shire, S.Ct. [91 dow, saying stepped that he had off the was, L.Ed.2d There in any 564] walkway a few grass feet on to the to do so. event, no lawful search within the mean cross-examination, On only counsel Rig- (Chimel v. United ing of gins and Yarbrough about the step- asked (1969)), L.Ed.2d [89 685] ping walkway off the to look in the win- given the location narcotics and dow, brought but more than out no Simms defendants at time of the raid.” already had said. The court observed that 3. “At the time of the raid narcot- appeared there dispute to be that no Simms rug ics were under a and under a mat- stepped had briefly walkway off on to tress clearly and hence were not in the grass. by Cross-examination appel- ” subject view and to seizure . . . lant’s counsel very was brief and did not supporting illegal being 7. A written motion and memoran- observation was as a violation of appellant’s privacy, although dum identical principal terms defendants’ their Livingston exigent filed on behalf of and Nelson. claim was that there no circum- respectively Riggins justifying entry. Rig- motions filed on behalf of stances the warrantless Yarbrough gins’ argument each referred to the observation motion concluded with the that by window, through “Any exigent may made Officer Simms circumstance that have ex- having pre- Simms to this fact at isted at testified the time the officer observed three men liminary hearing ap- powder through when arrestees first white the basement win- dow, peared magistrate longer thirty before a and were bound no existed minutes later jury. grand Riggins over for the Both returned to the scene of their obser- Yarbrough papers asserted their vation.” met, win- through the last time we peering issue was I thought on touch Simms’ it was all, very distinctly to ask how far drawn as to except Your Honor’s at dow concern and the powder to the focus of defense observation counsels’ point his from comments, primarily and it went to the the table. entry.” reasonableness of the warrantless it was testified redirect Simms On assumption, unchallenged It was on that street 40 feet from the 30 to approximately defense, pressed that he the court to window, first and that he the basement testimony by hear Barcella. steps from up he went light as saw the testimony completed, When that oral walkway to street sidewalk argument disposition was had on the to be witness where asked the The court house. appellant made of the motions. Counsel for respect to the located with window was solely addressed himself to the alternatives “The was that and the answer walkway, which he considered were available to Offi- right of the right off to window is cer Simms at the time he looked in the from The court then concluded walkway.” window, assuming that “he at that objects in made from comparisons distance type sufficient corroboration of the (the window) “it looks the courtroom probable reach the level of cause.” The three feet out.” about two or to me to be first alternative was that could— Simms the examination of Officer Simms When forcibly and should —have entered finished, ex- defense counsel and after Second, house then and there. having cho- Betts having interest in Officers no pressed time, sen to premises leave the for a it was exami- the stand for placed Ponzelli imprudent for him to have done so without nation, colloquy following there was the having arranged enough first for additional counsel: court and defense between police to have staked out each exit from the that at least gather I THE COURT: house. The third alternative was said to be put to questions thrust of the from the did, just what Simms in fact and that was isn’t serious witness that there there characterized as unreasonable because respect raised with was no assurance of the existence of exi- is, entry? entry, forcible means of circumstances, gent probable or even of No, Your Honor. McINTYRE: MISS cause, when the returned to the I think that is a MR. CARL FOGEL: premises.8 fair statement. ruling denying suppression In his oral And what counsel are THE COURT: hearing the close on November 1—a the lack of a concerned about is presently the court no ruling which saw reason to warrant? to hear reopened hearing Mag- alter at Yes sir. MR. CARL FOGEL: Burnett —the court first istrate observed hearing resumed suppression When the the facts as related Officer Simms observed, prosecutor open and Mr. Barcella were “not to serious on November dispute.” It to be any quarter, that “the considered reasonable without dissent appellant’s Riggins alleged illegality arguments behalf of stressed an 8. The made on anonymous phone per point, generally se rather than what made the same call co-defendants it; consequence joined exigent namely, was done in and it that such cause placing major emphasis may the others on the have existed when circumstances departure premises from the claim that Simms’ did first the window Simms looked dissipated his to make a warrantless en- justify warrantless when he returned. try. Nelson, along who was convicted Counsel appeal, appellant but did not and whose arguments, the nature of the defense Given assert- emphasizing motion made a reference to the prosecutor written the confined himself to by privacy entry the look ed invasion effected of the warrantless the reasonableness window, through testimony delay light no reference to that the made the of Barcella as to the any warrants, nighttime getting whatsoever. Neither did the the inevitable counsel, away, representing Rig- except one time that Simms was and the con- other the short exigent tinuing gins also included existence circumstances whose written motion had point. argument privacy for when he returned. But the oral the majority, dicta of the division that it was too now asks the conclusion Officer Simms’ entry during his first full court to reverse the conviction on attempt dangerous to scene, But ground perception it found that alone. this belated on the appearance regarded by of an issue not theretofore to consult his attempt that time Simms’ appellate counsel of signif- either trial or as rea- failed for technical superior by radio problems inevitably icance raises the inher- 30 to 40 min- court found that sons. ing disorderly proceeding, in this manner of before was elapsed at most Simms utes compilation evidentiary such as the of an scene, the and it noted back on the trial reference record the court without only that the record showed evidence of and, legal question, to the issue even would have meant of a warrant getting instance, in this importantly more fail- regarded 2 hours. It to delay of IV2 upon ure to focus the trial court’s attention through to look police of the failure ruling it in motion. Considerations re- again they window basement of this nature lie behind the command of since slight importance turned as 52(b), Fed.R.Crim.P., Rule that matters not of time. period in such a short were back brought to the attention of the trial court fact that the court viewed the Finally, the on appeal only shall be noticed if con- received, legal advice sought, and police had affecting stitute error substantial contributing substantially to the reasona- rights. stage Mindful that at no of this making action in police of the bleness proceeding prior rehearing criminal to en entry. warrantless appellant legal banc has claimed that injury upon by Ill was inflicted him Officer window, through weigh look we Simms’ that, for all foregoing It is clear from the by ground the new call for reversal on this suppression the case for practical purposes, the Rule. exacting standard of in the District Court on presented justification supplementary for an immedi- In his theory that the brief to court en banc, appellant’s position to arrest and search is stated to be ate warrantless phone by police the absence of the call received was attenuated gave was the for some 30 to 40 minutes. That Officers Simms and Betts the go after the evidence do no more than to on the argued premises issue court in, inquiry and that was the contention it disal- make an at the front door of the house, anyone denying suppression. forcibly stop lowed in It was who came to door, and, by newly-appointed appel- point made if there was at that same weapons, pat fear of late counsel to the division of this court articulable down initially appeal. person responding inquiry. heard this It was to the We think, contrarily, which first that that is an unnecessar- majority of that division opinion propriety ily in its restricted view of what would constitute canvassed observation reasonable action under the circum- Officer Simms’ And, although majority obtaining window. vol- stances this case.9 unteered the view that that observation place, appellant In the first we note that nullify- improper and could be taken as appears tip to concede that about the later, that came it concluded not to ing all proper subject was a bagging session ground its decision on because rest investigation police, and that by appellant raised in his had not been investigation going could include across the appeal. premises to reach house itself. Officer that, surprising precisely when the testified that this was hardly

It Simms testimony appeal was vacated and the what he and Betts did. His fur- opinion division that, banc, doing ther was as he and Betts were placed appellant, en sensitive points supple- would 9. As the out in its have courted almost certain destruction Government banc, have evidence. mental brief en for the narcotics suggested by appellant followed the course right through public front see the door from the light way in the this, saw the to an they go This confirmed whether had had to on to the window. build- basement supplied ing the information lot itself in order to do so. degree As indicated important Simms, and, above, again according prepared the Seventh Circuit was tip by the bagging fact, a narcotics whether that the latter was the that assume suggested be determined could progress police was in still to find that the action was rea- session by the other a look way or conclusively meaning one sonable within of the Fourth nothing If of lighted window. through the Amendment. seen, police then the to be kind were

that phrase The trespass” “technical used in would, de- could, testified as Simms opinion was Conner taken from an ear disturbing the oc- immediately without part opinion by Judge Major lier in United promising with a the house and cupants Hanahan, (7th v. 442 F.2d 649 States Cir. nothing. come to having lead officer, 1971). a police using In that case a required by a deviation look To take that flashlight, peered night through the win across two from the course step or only a a garage adjoining dow of a locked door of admits appellant which yard police a house. The officer testified that he traversing. To the ex- legally was standing private Simms on sidewalk on the was a entry upon was an that deviation tent that property, but one had been used in in its differing arguably property private expectations such manner as to defeat no intrusion al- from the significance legal if privacy police upon entered it. It appears that difference progress, ready however, contrarily urged, that the of was “mere ‘technical tres- comparable stepped ficer had in fact off the sidewalk ” Circuit, speaking which the Seventh pass’ grass onto the between sidewalk and Pell, said “did not transform Judge through garage itself in order to be able to look investigation into reasonable otherwise an through garage window. This asserted United States unreasonable search.” an curtilage argued invasion of the (7 1972). Conner, Cir. 478 F.2d position by a taking constitute private property officer on where he had no investigating were a police In Conner meaning language to be within the being used building was that a certain tip States, used in Harris v. United In an of stolen cars. dismantling 234, 236, 19 L.Ed.2d 1067 going what was on to see effort Circuit, Conner, (1968). The as in Seventh public went down a building, the officers prepared accept this version of the They building. alley to the rear of that, so, facts, concluded even there but open door through see able to were trespass than a technical “no more dismantling of car involving the activity officer,” giving not rise to part of one. description of a stolen matching the At violation. also Fourth Amendment See Appeals, by faced the Court problem The 136,138 (5th F.2d well v. United from the however, it was unclear was that 1969).10 to Cir. police had been able whether the record windows, Gonzales, by looking (5th accomplish searches 388 F.2d 145 Cir. In State v. court, through Judge citing 1968), speaking v. United its earlier decision in Brock (5 1955), Thornberry, characterized the existence of 223 F.2d 681 Cir. observed trespass police immediately “depend under before it as a not activities does search law,” despite property prolonged “fishing expedition.” the use some In the case local concept us, property appellant law claimed that the the common before has never courts of curtilage Fourth Amendment to define have information which did not investigate. invade required cannot boundaries both and entitled court found There the without cause. agree court that com- We with the Gonzales repeated officer looks particularly property concepts mon law private unreasonable house windows of a problems; of Fourth Amendment illuminative the offi- nature of of the insubstantial because trespass” terminol- “technical and we take the might be narcotics sales information cer’s reflecting ogy of the Seventh Circuit court, although saying going on there. always re- same of view.. police can never is not the law that it uncertainty room, no here to Three men were There is visible and He testified might did. more well premises, what Officer Simms have been on the that, lighted win seeing resisting all with a stake in forthrightly by arrest vio- dow, walkway on to the lence stepped necessary, off the if and in destroying he concealing the court found not the evidence. only by a distance which Aided grass, Betts, But, thought or three feet. he dangerous more than two Simms faced a to be tip account the nature of the he situation which not called for careful taking into we, investigating,11 handling no more than the in order not to lose control over Circuit, disposed find in this the narcotics but in effecting also what Seventh might the difference between reason have to be a entry. circumstance forcible He tried superior in Fourth Amendment terms. to communicate radio with and unreason his precise Translating guidance, these terms into the officer for but failed for technical us, we not think that Offi He issue before do reasons. did not think it wise to sum- testimony exposed plain regular error mon patrol cer cruisers for fear of Simms’s affecting rights requiring alerting us to the occupants substantial of the house that the police were on reverse this conviction. hand. Under the circum-

stances, thought he it get best to to Police IV Headquarters possible, as fast as which he did. There he was directed to rendezvous of this propriety purposes Given officer, superior his with consequent appeal through of look Officer Simms’s reinforcement, and to await a further or- window, question there can be no serious order, came, der. That when it was to saw, that, he Betts light of what house, by enter the force if that should legally have entered the house imme- could prove required. to be purposes of arrest search. diately for indeed, is, precisely appellant This what ar- problems may Whatever leave unre- police the District Court that gued to warrant, solved about the need for a to, should, were entitled have done. delay not, approximately of a half hour did one, therefore, question believe, becomes we terminate the prob- existence of period whether failure to do so for a of 30 cause, any able more than such cause would dissipated right, either to 40 minutes have disappeared point at some in the much at some in that interval the because longer time required get a warrant. If police longer concluded, could no be said to have had therefore, that, under the cir- felony cause to believe that here, obtaining cumstances procure- committed, or because a warrant should ment essential, of warrant was not during period have been obtained justified were legally in entering the delay. premises arrived on the scene time, the second on the basis of what had record, we find On evidence been learned on his appear- Simms first irrationality, no as neither did the District turn, then, ance there. We to the warrant Court, in Officer decision not to Simms’s question. immediately. enter the house He testified recognized quick that he from his look warrant clause of the Fourth is, through upon window he had come Amendment like the other strictures of charter, major operation. subject narcotics distribution to the standard of the mains one of whether action was there was cause to make a warrant- all the circumstances. reasonable under less arrest after the look the window. pp.---of U.S.App.D.C., pp. See suppress, motion to far from In his written supra. are, 837-838 561 F.2d These cases claiming improperly Simms acted Officer course, highly relevant window, looking through appellant cited reasonableness of a officer’s actions Spinelli v. United 393 U.S. specific relation to the information contained in (1969) Draper v. Unit- L.Ed.2d 637 report. the informant’s 329, L.Ed.2d ed assumption arguendo in his bearing grave in mind the responsibility action under the official reasonableness prevent have to detect and to activity This is not a circumstances. particular legislature has labeled as crimi- without action was taken which that case obviously had come nal. Officer Simms to the warrant whatsoever any reference upon very opera- a substantial distribution Officer Simms inasmuch as requirement, the drugs, opinion tion of illicit and of a obtaining a of possibility the ignore did field, prosecutor experienced coinci- be- During the interval warrant. search police, the dentally expressed to was that the window through first view tween the necessary to assure speedy action that he had discussed entry, the eventual and the values of that observation in terms of police a sergeant and police a this with law enforcement could be realized.13 called an Assistant The latter lieutenant. who, apprised of Attorney United States prosecutor’s The advice in this in circumstances, himself as of expressed the course, not, stance is of conclusive. But the seen powder white that the the view police seeking action of the in both and remain unlikely to the window was through following that advice is relevant to the further said long; and he very house at the by of whether the decision the a to obtain time there was insufficient proceed that without a warrant police removal, its warrant before judge regarded search reasonable. The trial so it it would take predicted that as and we making ruling, inasmuch his think he was two hours at the and a half to one well within the bounds of his discretion in from procure such warrant.12 so. doing least to that this consultation with the only prospect after Confronted of substan-

It was had, house. delay to enter the if a warrant were to be there was made tial the decision po- the by followed were other relevant considerations for the of conduct The course police does to take into account. First and fore- circumstances precise these lice under unreasonable, cutting opera- the fact most was us to have been not seem to why po- approved, reported Congress give pause is Court un- some 12. What does lice, problem (1970), proposal by here of the kind faced with a der 28 U.S.C. 2072 § involved, get speedier action in the mat- cannot Judicial Conference of the United States to See United States a search warrant. ter of amend the Federal Rules of Criminal Procedure Robinson, U.S.App.D.C. R. Vance (Rule 41) provide for the issuance of war- that, testimony was al- F.2d upon testimony, may given rants which oral police permitted though to call the are by telephone. transcription Recordation and invariably magistrates directly, are told to are, course, July required. On 1976 the Attorney’s get States in touch with the United 94-349, signed by 90 Stat. 822 President P.L. shall be that their information office order Congress which the effective of a deferred date scrutiny prior legal subjected before it is ato amendments to the number of the Criminal appar- magistrate; and it is to the transmitted ently Court, by Supreme proposed as in- Rules cluding must al- assumed that this transmission purpose Rule 41 for the those to appli- ways a formal written be in the form of 1, 1977, question, August until or until and to by accompanied affidavit or affida- cation approved by Congress, the extent Act of which- by they required assumptions, be vits. These ever is earlier. tradition, statute, rule, plainly not in and law enforce- with the facts of life Court, accord having 13. The District found that today. of mechanical With the existence ment transcription police into the house came within 30-40 appear possi- equipment, it would through win- minutes after the initial view application to be made for for an oral ble dow, significance to the fact that attributed no warrant, opportunity meaningful with a search police did not look the window authorization, give magistrate verbal for the return; rightly again and we think so. on their being proceedings recorded the entire and with suggested possibility, prosecutor subsequent purposes as to their review for propriety. away only police to be but if the were from Since t tck scene an hour or more. were plausibly argued there is noth- It can be elapsed, of time had well before that amount ing or the the Fourth Amendment in either prosecutor’s suggestion applicable was not pre- Rules of Procedure Federal Criminal terms; anyway by adhering to it its would today. done vents this from unnecessary risk alert- have created an event, way appears on its matter to be destroy ing occupants to the evidence. Supreme April On solution. is, thus, narcotics be There terminate and the no basis ac might tion for is no And it premises. appellant’s that, cepting removed contention al consideration the force submission, answer to though, in his alternatively have could fully empowered premises to enter the premises long for so as it out staked arrest search purposes the time of are full get warrant. Stakeouts took original observation of criminal activi objects may it dangers that the there- progress, upon ties in was lost presence of police, be alerted their failure to exercise immediately. destroy or conceal accordingly can was, There was conceded the defense narcotics, frustrating en- thereby hearing, at the impropriety no in the man comes. try finally when it police ner in which the entry into house the was finally only effected. This leaves the recognized panel majority this The search, of whether the scope of the approach, in the stake-out but weakness which resulted in the of seizure the narcot by refusing engage aside to in turned ics and paraphernalia,15 narcotics was too probabilities of the about the speculation issue, extensive. This which was not exposure But to of evidence. destruction pressed suppression at the hearing nor is enough narcotics cases to a few initially appeal, raised on does not warrant of that evidence form narcotics know police reversal. When the had seen a crime easily peculiarly speedy vulnerable to is actually in destruction; progress with contraband in very accomplished and that view, plain upon entry premises the into vulnerability police offi something is they were fully in course their narcotics enforce authorized both to make ar cers rests and to unfailingly must seek out the ment duties be conscious contraband. As the shows, record speculate p. repeatedly they about if -of U.S.App.D.C., of and p. F.2d, 835-836 of 561 effectively protect supra, to to function found interest. The District Court had no contraband in immediate public vicinity police of the arrests in second-guessing on this basis close environs of hardly seen, it can said have question, and where it had first been refraining doing hasty had, in from so on this albeit erred efforts concealment as record.14 every anticipate, had reason (Emphasis supplied). This en banc court’s decision Dorman v. ted.” The underlined as- States, U.S.App.D.C. is, course, flatly United 435 F.2d sertion of fact contradicted by record, with its detailed enumeration the evidence of and no one other entries, panel has majority factors relevant to warrantless than the has ever maintained by upon appellant been both and the relied otherwise. involve, panel majority. panel Since Dorman did not majority applying also erred here, entry by police a short after time factor of the seriousness of the It offense. actually progress, had seen crime possession chose to characterize of heroin —the upheld entry since Dorman warrantless some appellant ultimately crime of which con- five after crime hours there involved gravity not victed —as an offense of the con- committed, has, facts, been that case on its templated by may be, Dorman. However that one, except little to this resemblance as the reported by the crime the informant and seen is a same result fortiori indicated. It need not by progress simple posses- Simms was not longer panel detain us than to note major operation, sion but a heroin distribution majority uniformly persuasive was far from surely which no one conversant with the link dealing with the items the check list this activity generally between and crime compiled court in that case. regard grave. would as less than It was notably respect This with true to whether to that reference latter offense that peaceable has been judged circumstance particular are to be under this Dorman —a which the Dorman court described as of value standard. showing “in atti- reasonableness appellant’s 15. These were the items which panel tude and conduct.” comment of the suppress motion to was directed. The other majority regard “[Wjhere in this was that e., police, money matters found i. police identify give themselves and those inside weapons, appear and the do to have been surrender, opportunity the here, as was not done suppression controversy. involved in the privacy aggrava- invasion is less power in officer who has a right posi Whether the search to be in the made. been tion,” to ar- be viewed as incident this instance Harris v. United rest, deriving independently 992, 993, or as 19 L.Ed.2d 1067 S.Ct. contraband, of the (1968). initial observation applies The same to searches that appear to have been in issue here materials light are reasonable in the of information sufficiently sweep within its to defeat gained by plain an officer view from a the District Court on a faulting of right Coolidge where he has a be. place error basis. 466-67, v. New Hampshire, 403 U.S. (1971); 29 L.Ed.2d 564 James v.

Affirmed. U.S.App.D.C. WRIGHT, Judge, n.1, Circuit J. SKELLY 418 F.2d 1151 n.1 concurring: apply Does the rule when the officer is special circumstances In view be, place not in a where he has a the care case and trespassing because he is on someone else’s circum- is limited to these opinion court’s answer, property? long Is Yes—so as it stances, to concur. pleased I am can be called a “technical trespass?” Of course, there are differences between tres- LEVENTHAL, Judge, joined by Circuit passes. example, trespass For a order WRIGHT and SPOTTS- Judges J. SKELLY do an act that is lawful is at most the ROBINSON, W. III: WOOD misdemeanor entry, of unlawful whereas a opinion for Judge I concur in McGowan’s trespass in felony order to commit a is a appel- He note that majority. takes burglary. my calling trespass But in view a banc that counsel contends en lant’s only “technical” because it is a few feet violate the entry and search warrantless away place person from a where the has a the observa- Amendment because Fourth responsive to be would not be to the the house that es- of activities inside tion purposes broad of the Fourth Amendment. by Offi- probable cause was made tablished is, trespasser The salient was the street, or from the not from the cer Simms place encroaching in a where he was on a house, only after walkway to the but expectation privacy reasonable lawn in order to grass went onto the officer within the fair comes intendment window. As through the basement peer Katz Fourth Amendment. United out, opinion brings Judge McGowan’s States, 347, 351-52, 19 pressed earlier in the had not been issue (1967). Judge L.Ed.2d 576 McGowan is banc, panel, but en appeal before quite right property “that common law con- in dicta the issue had been identified when cepts particularly are not illuminative of a opinion.1 This is fair case panel problems,” Amendment as the Katz Fourth we will not the rule that application of illustrates. But at dramatically case least “plain” error or in the absence reverse respect with to the home and the surround- suitably not raised.2 questions decide ing curtilage protections traditionally the time of the jurisprudence per- accorded from common law Amendment Fourth reasonable, seizure, bearing inquiry have on the as to reasona- if otherwise mits plain expectation privacy.3 view of an ble “objects falling in law, point had not been raised in Johnson’s issue is one should focused 1. This by any prior pursued to decision. Nor was it motion at trial. sup- presentation at the counsel in oral defense it, Katz, put concurring in 3. As Justice Harlan hearing. pression protects people, Amendment while the Fourth however, places, question, viola- is what core Fourth Amendment “[t]he If this were a house, protection people. breaking it to those General- it would be affords into a tion like here, case, ly, question requires subject as the answer to that error. In this to notice as ‘place.’ however, specifi- to a . . Thus a man’s is not reference we have an issue is, place authority, purposes, where he cally and while I think home for most controlled activities, expects privacy, objects, likely way analysis point or state- study but special the observation that “a Open trespass fields are not within does not of Amend- accorded the Fourth protection an illegal itself constitute search.” houses, people “persons, in their to the ment F.2d at 138. held Hester v. and effects.” So papers, Meanwhile, Circuit, the Fifth Mon- United U.S. nette v. F.2d Holmes, (1924), where Justice L.Ed. upheld building search of a (265 laconic, characteristically said emanating prem- the odor of mash from the 446): “The distinction be- S.Ct. at distinctly ises been at the “identified and the house [open the latter tween fields] property holding line.” of Monnette is 4 Bl.Comm. as old as the common law. enough, opinion but sound at one Blackstone, 223, 225, af- 226.” And indeed unsound, language susceptible uses of common developing the crime of law ter plainly unintended, and I think result. The England burglary, notes that “the law opinion Hester cites for the proposition that regard to the particular so and tender has the Fourth Amendment does house, not extend to styles that it immunity of man’s castle, “grounds it to be surrounding and will never suffer a building.” his This And while “no impunity.” is too violated formulation broad an expansion of barn, warehouse, the like are distant “open fields.” And indeed the court obvi- privileges, upon nor looked under same ously did not grounds mean that all sur- defiance,” capital “the man’s castle of rounding a building beyond all its branch- protects privileges house Amendment, Fourth for when the court appurtenances, if within curti- es moved from the (olfactory) observation lage undergird- or homestall.” The notion the property made at line to consider the distinction, ing curtilage-open fields (visual) observation made agents when the protection special accords law up went peered house and activity within its immediate the home and the rear gain windows in an attempt surroundings, finds resonance in private evidence, further the court flatly said “this opinions.4 Supreme Court recent peering into dwelling trespass was a “open rightly fields” doctrine certainly probably right violated his by Judge Haynsworth to observa- applied well.” privacy as Id. The court was able agents, revenue who smelled the tions to bypass that peering trespass only be- whiskey cracks in escaping odor cause it had not yielded any information barn, siding assuming, of a even what and hence was not material. established, not in fact been The distinction open between fields or woodlands were concealed grounds woodlands and the immediately property of the defendant. Unit- were surrounding a house plain would seem (4th Young, States v. 322 F.2d 443 Cir. ed enough. But it seems to have been blurred 1963). quarrel Nor is there with extension Hanahan, v. United States 442 649 F.2d a approximately yards still “located 250 (7th 1971). Cir. There the court first held open the back of a in the house land the officer was standing on the side- beyond curtilage of the house.” Atwell (5th walk 138 looked into garage v. United 414 F.2d Cir. accurate, too, (where 1969). And it was for Judge defendant was working on stolen Thornberry holding to accompany cars) this then said that even if the officer ‘plain exposes meaningfully restricted,” distinguish- merits that he view’ of was not ‘protected’ outsiders are not because no inten- ing private the seizure of an automobile on a keep tion has been them to himself exhibit- driveway Coolidge tn its earlier decision in v. ed.” U.S. at 516. 88 S.Ct. Hampshire, supra, “requirfing] New an en- try upon private property.” plurality These 583, 593, Lewis, In Cardwell v. 417 U.S. opinions are discussed in United States v. 2464, 2471, L.Ed.2d Robinson, U.S.App.D.C. Vance E. upheld seizure Court the warrantless of an n.8, (en banc, 1976). 533 F.2d 582 n.8 lot, unoccupied parked public parking car in a public place aas seizure “from a where access MacKINNON, standing grass few inches of Judge, Circuit concurring: “[a] “it garage,” the sidewalk and the between join I majority opinion agree trespass” and no more than a technical the search was valid for the reasons there trespass is Atwell established that a stated. I also believe that additional illegal search. Id. at 654. Of itself grounds exist for finding the search to be search, trespass is not itself a but course valid, and some further comment on the the officer may it establish that was not in dissent separate and the concurrence is re right where he had a to be when he place quired. agreed All are “objects falling justified made the view that the search. plain view of an officer who has a purposes Amendment For Fourth an officer right to position be in the to have that view fields, etc., right open to be in where has subject may seizure and be intro expectation there is no Fourth Amendment California, duced in evidence.” Ker v. privacy, apply but does this to the lawn 23, 42-43, 1623, 10 L.Ed.2d 726 opinion a house? The was not care- around (1963); Harris v. United such matters. ful about 234, 236, 992, 993, 19 L.Ed.2d 1067 improved upon Hanahan was in United controlling issue then is wheth Conner, (7th 478 F.2d 1320 Cir. States er the officers here had a to be 1973), Judge where Pell held that the obser- in the position where were when they garage permissible vation of “plain obtained their view.” (a alley public way) whether made from the adjoining apron outside the or the rear door 1. The Dissent’s Position. garage. While he noted that it trespass a technical if the would be adopts position The dissent that “the adjoining apron, key were on the his discus- government would justify be able to [never] apron adjoining sion stresses that plain grounds search on view when it was alley alley” “was not fenced off from the necessary [police] for the officer trespass and hence the situation was such that in order to achieve the view.” Dissent at - expectation defendants “had no reasonable of 182 U.S.App.D.C., at 858 of 561 privacy.” Id. at 1323. F.2d. In applying this statement of the law present entry finds that the of the police- expectation The core issue is reasonable the grass prohibited entry was a privacy. That is the kernel of the cases trespass. finding constituted a such en- upholding warrantless searches based on try by trespass, officer to be a place view observations from a where unlawfulness, assuming and further its right my the officer had a to be. In view dissent thus assumes the for deci- protection while Fourth Amendment would linchpin sion—the of the dissent is the as- not extend to by persons using observations paved way sumption that the officer’s on the from the sidewalk to the house, grass illegal trespass three feet likely door of it would extend to was an by walking resulting evidence obtained onto the lawn and rendered the search unreason- peering around the house and then able. position supported into That is not windows.5 case law. Santana, 38, person knowingly exposes public

5. United States v. 427 U.S. to the is not 2406, (1976), entirely subject protection, S.Ct. 49 L.Ed.2d 300 is of Fourth Amendment congruent opin- although with the observations in this “under the common and further that context, dwelling property ion. In a different the Court decided threshold of one’s law of Watson, yard surrounding ‘private,’ that the rule of United States v. is house,” as is doorway (1976), standing person 96 S.Ct. 46 L.Ed.2d 598 in the permitting upon probable dwelling warrantless arrest in an area where she had her “was not “public” privacy.” place, ap- any expectation cause when effected in a Santana “was public exposed plies standing merely of an but as arrest individual visible to view, doorway hearing seeing speech, public and touch as if of her house who on standing completely police outside her retreats into the vestibule of her dwell- she had been stated, Katz, ing. citing 96 S.Ct. at 2409. The Court that house.” 427 U.S. what a Duty of Police Officers. Right 2. The and derelict in their duties if did not take reasonable steps promptly to ascertain the questionable highly Not is it wheth- correctness of reports of unlawful acts that presence private police er a officer’s carry a reasonable suspicion major trespass, property constitutes such criminal laws are violated in plain duties, entry is in conformance with his but view from the outside of building. did, justifiable. it would be After even if all, policemen empowered duty- are and Under present the facts here police law on private proper- bound to enforce the had a right duty and up to walk the side- ty public property. walk, as well as on Policemen step two or three feet grass onto the officers, just judges, like public who and verify further the accuracy of the duty anonymous have a and sworn to enforce the telephone report by observing particularly the criminal law. This what was in view from outside the law— obligation private extends to as well as house. This breaking involved no and en- just public property obligatory and is tering whatsoever —their access was not re- night highly dangerous the dead of cir- stricted in any way house was not —the daytime cumstances as it is in the in safe even touched and the result was the verifi- Their surroundings. duty very is difficult cation of part the second telephone extraordinary because our law throws report, e., safe- i. large that a quantity of contra- guards around criminals and what is normal band present narcotics was where it was police prohibit- conduct in most countries is plainly visible from outside the house. The Also, ed in the United our police part States. first anonymous report had al- relatively forces are small. This requires ready been verified when police ob- police rely greatly our officers to on citizen served light precise on in the support stop apprehend crime and place (the those window), basement precise in the who the law. Law-abiding (so violate citizens manner that those in the basement were constantly report law po- outside), violations to the visible from precise and at address, all methods. some of these re- that the telephone report had stat- lice— oral, ports, written and the citizen identifies ed. The large quantities observation of himself and others chooses to have his narcotics proba- inside house furnished kept name confidential or report his ble cause to enter the justified house and anonymously. reports by made These citi- the arrest of the principals and the search are one of the zens hallmarks of a civilized large and seizure of the quantity of contra- society lead to the discovery and of much police band heroin. The acted throughout activity. Police officers would be in a reasonable manner —that criminal is the test.1 suggest anonymous tip (1964) Chapman 1. This is not to that the L.Ed.2d 142 v. United gave cause to enter and 365 U.S. 5 L.Ed.2d merely them, gave search the house. It the outside verification here case, authority context of this take closer represents Texas, Aguilar as to verify tip look from outside the house 12 L.Ed.2d 723 The au in the reasonable manner did. The thority proceed further was derived from the exigent circumstances were then obvious and Terry, Aguilar frisk in does not foreclose a it was thereafter reasonable for the finding reasonably acted in this the house and enter make the arrests Aguilar situation. involved the constitutional many This factual search. situation has simi- requirements for the issuance of a search war Ohio, Terry to that in larities involved v. rant and did not involve the existence of exi U.S. 88 S.Ct. 20 L.Ed.2d 889 gent by circumstances found officers on the Supreme where the in a Court decision written pronouncements beat. Its are not to be taken Warren, dissent, Chief Justice one applied rejected from context and or in a wood held that it was not unreasonable to effect a (See dissent, n.1.) Terry en manner. As v. street, “stop- an individual “seizure” of on the Ohio, 19-20, 1868, teaches, 392 U.S. at 88 S.Ct. and-frisk” him and then arrest him on the basis approach the initial is to be tested the stan authorizing what was found. The decision reasonableness, light exigent dard of in of the Terry represented the initial “seizure” in present Terry. circumstances both here in and of Katz v. same refinement original approach Evidence obtained from that (1967); 19 L.Ed.2d 576 Ohio, cause, could lead to but initial Beck police resolutely they attempt acted as to learn the That combination of a store call for night dark of should did safe containing large money; amount of part commendation. That is of the public (2) that beating a man was his wife and at policemen knocking duties of dangerous — stopped; (3) would kill her if he was not nighttime knowing in the not strange doors that several bank robbers where bankers them, going up behind danger what lurks policemen and had been killed were divid- alone) times into alleys (many and dark $85,000 stolen; (4) ing or highly dangerous places in suspicious and several men raping were a woman in the property, individuals and protect order to of the any basement room house. Would crime and to enforce the law. That prevent person deny policeman that the had a That is one pay is what citizens taxes for. duty immediately step and three feet depart- purposes police for which verify onto the lawn the accuracy and organized policemen are and are ments anonymous telephone reports by a mere years hired. In the last five in the United glance exactly police that the manner police feloniously officers were Or, police required did here? should the performance killed in the of their duties.2 property first to check the title to the “peering” entering Their into windows and go police go through station and strange premises, suspi- reasonable necessary paper work to obtain a search brings exigent cion them there in circum- stances, property (Could could save the lives and they get anony- warrant? one on an occupants of the house. That is report?) just hope person mous I if some duty many for the fainthearted and inten- the police says calls he believes some it, tionally but the men who have avoid robbing my robbers are me in house ability manly courage respond and the using my some friends of mine are house to dangerous imperative emergencies such $85,000 bag drugs, worth contraband “trespassing should not be branded as outside, easily can be seen from the prowlers,” dissent at- U.S.App. that the will act and not immediately D.C., F.2d, at 858 of 561 and the law does step grass verify be afraid to onto the not do so. Police officers have a different report. anonymous tip describing An They public specially status. officers (Tr. 803, 768-775) such felonious activities They chosen to enforce the law. are the (Id.), capable easy such verification de- friends, law-abiding not the enemies of the serves something ignored better than to be citizen. by public employed officers who are then remains: when is an authorized to enforce criminal laws. entry by private officer onto the Reasonableness is the constitutional test property of another perform- within “the' and there is duty.” nothing ance of his unreasonable in such conduct —it highly would be unreasonable $85,000 Suppose, instead of an illegal nar- for the not to enter on the property operation, anonymous cotics telephone verify report without hesitation. reported caller had under identical circum- doing so “the constable” did not “blun- (1) stances that the owners of the house der,” dissent at holding hostage gun merely carried out his point in the basement room and torturing him in an duty. sworn (not inspection home”) (I-M, a full-scale 21) “search of a verified from the street sidewalk Tr. by seeing light is if emanating defensible reasonable. This view the dis- from the base- ignores. window, sent conclusory ment than existed Terry. suspicion in Moreover, glance in this case the visual through the window from the outside not as by year 2. The actual numbers are as follows: temporary much search as the seizure and 129; 132; 134; 116; 1975: 1974: 1973: 1972: Terry frisk and the officers had a more Investigation, 1971: 129. Federal Bureau of anonymous tip (cf. substantial basis here 1975, Crime in the United Uniform States — States, 307, Draper v. United 358 U.S. 79 S.Ct. D.C., Reports (Washington, 1976). Crime 223

329, (1959)) partially 3 L.Ed.2d 327 when it was 850 Exigent gency. Cir- The crime here is of a different Searches

3. Reasonable nature, $85,000 but the drug operation is as cumstances. substantially damaging society to as are the are what situations described The above situations, postulated experience four in mind when re- Douglas had Justice teaches that these likely criminals were are . where “officers to instances ferred escape with the evidence if were not emergency . to an responding [and] apprehended quickly. strong The likelihood made that of the situation exigencies of the imminent removal of the contraband v. McDonald United imperative.” course drugs is an unusual circumstance justifying 454, 456, 191, 451, States, 335 U.S. a warrantless search. United States v. (1948). What else should 193, 153 93 L.Ed. Blake, (8th 1973), 484 F.2d 50 Cir. cert. Lay siege to the home and do? denied, 949, 3076, 417 94 S.Ct. 41 gun bat- neighbors possible expose (1974). L.Ed.2d 669 two hours while and a shoot-out3 tle .for Attorney, return to for a U.S. they look Respect 4. The Law with to Police Offi- stenographers type have out headquarters, cers. at 1:00 a. magistrate find a affidavits entry upon prop warrant; [the defendant’s] then when a search m. to issue erty, [by even if made officer] say they were house the men they enter the cause, without does not neces there no dominoes and are just playing sarily trespass. constitute a When the they were de- drugs because contraband performance duty requires of his offi an stroyed in the interim? upon private cer to enter property, his impera- situations involve All these conduct, trespass, justifia otherwise a is circumstances. emergencies exigent tive — ble. Giacona v. United 257 F.2d and the criminals way under Crimes (5th 1958), den., Cir. cert. 358 U.S. long enough for the stand still will not 873, 113, 104; 3 L.Ed.2d Foster v. stop and still any paper work police to do (5th 1961); United 296 F.2d 65 Cir. evi- the criminals with crimes or catch United v. Sterling, States 369 F.2d 799 them.4 If the to convict sufficient dence 1966). (3d Cir. followed, requires is the dissent procedure 275, v. Knight, States 451 F.2d succeed, (2) the wife robbery will (1) the (5th denied, 1971), Cir. cert. 405 U.S. killed, (3) robbers will the bank will be (1972) (emphasis 5.Ct. L.Ed.2d 240 gang- will be (4) the woman escape, and added). cap- will evade the criminals raped and all trespass upon grounds A surrounding for a Is it reasonable conviction. ture and building does not illegal constitute an idly by permit such to stand policeman protection search because the of the fourth The instant case certain results? almost grounds. emer- amendment does not extend to the type imperative the same involves out, policemen, wearing jackets, day newspaper came flak this was written de- 3. The operation capture any just building, two such an had to run into the to see if more scribed operation. Only It in- in a narcotics involved one bullet men were inside. had caused flak-jacketed special project section operation damage. volved The entire took 2'h hours. helmets, policemen; a barricade truck and riot Post, 27, 1976, A, Washington Nov. at 10. § area, cruiser, limiting escape cordoning off the (narcotics suspects), gunmen for the routes presump This court has held that an arrest is fire, pump keeping bystanders fire out of line of tively proof invalid when of the arrest and its rifles, shotguns, caliber sidearms additional .38 preserved properly circumstances policemen, other firearms all carried field, Murphy, U.S.App.D.C. Sullivan v. canisters, generator tear-gas specify, refused 938, 967, denied, 478 F.2d cert. up Headquarters lights. were set and flood 38 L.Ed.2d 125 and a adjacent grocery next store commandeered damages against will action for lie cause of constantly refuge. gunmen’s Guns housing case, Apton responsible officials in such a gunmen. building on the trained Wilson, U.S.App.D.C. 506 F.2d 83 premises, operated “We had on the assump- We don’t make . be sure Eventually, though some men even tions.”

851 57, States, heavily populated 265 44 on in a U.S. area at night, v. United Hester a (1924); room, 445, brightly lighted Martin v. 68 L.Ed. 898 front of a window 1946); States, (5th visibility Cir. afforded full 155 F.2d 503 those stand- United ing on States, 65, (5th the outside. illegal 296 F.2d 67 The v. activities Foster United here States, private were not v. because one of 1962); Monnette United Cir. occupants of the 1962); property v. observed 847, (5th Atwell them Cir. F.2d reported them to the police. States, (5th 414 F.2d Cir. United 1969). function authorizes policeman’s The Undoubtedly, the test of “reasonable ex- he confronts a closer look when him to take pectation privacy” has to be addressed in on the streets. Cf. circumstances suspicious police entry evaluation of a officer’s Ohio, 88 S.Ct. Terry v. 392 U.S. private property. onto In cases such as (1968). L.Ed.2d 889 Hanahan, (7th v. United States F.2d 649 1971), sighting by police Cir. officer not even to be permissible, held Hester garage defendant’s window was it was reasonable or whether considered sidewalk, just made from a few inches offi- not, entry by an unconsented property, onto the defendant’s but the view open fields. yards to 100 over cer of from 50 better from one vantage was not than the amend- being that the fourth holding Hence, other. since the defendant could houses, papers “persons, applied ment expectation have no reasonable items Atwell v. open fields. and effects” —not kept garage would remain free from (5th States, Cir. 414 F.2d United sidewalk, viewing public from the he had no unconsented 1969) that a similar holds expectation such even if the viewing actual- did not open of an field yards over 250 closer, ly occurred from a few inches tres- violation. a fourth amendment constitute pass or not. between no substantial difference There is open of an yards 50 to 250 running problem over But the simply is not solved field, a residential side- stepping off invoking the rule in Katz. That rule incor- open lawn in the 2 to 3 feet onto porates circularity. walk a fair amount of One open stepping onto city, expectation unless it is will have a reasonable priva- magni- less an act of much cy lawn involved over those areas that courts tell him he indubitably tude, reasonable and may reasonably expect private. is more to be Ref- large metropolitan city. frequent plain erence to another standard than more view required.

is also The concurrence and dis- though sent both discuss this case as Expectation Privacy. only justification proposed plain view. justifiable for a What is the standard principle But another is needed to deter- circum- private property in such entry onto vantage mine whether is We know that that standard stances? place view is made is where the cause, or some of the probable less than officer “has a to be.” Harris v. illogical. would be quoted above decisions 234, 236, United that Katz concurring opinion suggests If is 19 L.Ed.2d 1067 States, 389 v. United legal. search is (1967) the answer provides 19 L.Ed.2d principle, operative other U.S.App.D.C., at That (concurrence at-of case, judicial F.2d) recognized many it states that other 851 of 561 above, opinions, exigent the individuals and referred to is on whether answer turns circumstances. Cf. McDonald expectation had a “reasonable involved the factor that supra. here This is deter- controlling If that test privacy.” entry, mines whether officer’s hands down for would lose the defendants cause, within that his even without reasonably expect person could no must, “performance of his duties.” And it activities would remain large illegal scale law, recognized matter of that no occupant as a particularly from another private, expectation a reasonable them one can have premises, if he carried (Fudge) 852 warrant, a or the inconven- view of needed to seek objects those

privacy over by cordoning off the ience necessitated their of performance the police officers area, evi- to the destruction of could lead duties. present. then knew to be dence the officers requires of duties” “performance That knowledge came F.2d at 9. That 488 already has been cause probable than less garage, the but overhearing voices in that stan- contours of The full established. overhear position in a entry the to be reference demonstrated are best dard tip any informed or on was not based case law. the car had except that the information other Brown, 487 F.2d 208 v. In United States vicinity. disappeared in the denied, 94 416 U.S. 1973), cert. (4th Cir. has decided an analo The Fifth Circuit (1974), revenue 39 L.Ed.2d S.Ct. Knight, v. case in United States gous property, onto defendant’s agents entered 1971), sub (5th cert. denied F.2d 275 Cir. his ten feet of to within approached and v. nom. Grubbs United the court conceded barn, building which L.Ed.2d 240 point, At that curtilage. within the locality was based on original suspicion of a the odor of fermenta detected agents the informant, sight an aerial and a reliable tion, subsequently that evidence was and resembling the stolen one. ing of a truck obtaining a warrant to search upon in relied However, did not sanction the court entry initial Though the the barn. on property legal as entry onto defendant’s ema court held that odors trespassory, the warrant could have been grounds. these A have been areas should nating open onto but it was not. The court looked to sought, sensed, hence no reason expected to be situation, and con practicalities of the the Katz privacy of expectation able cluded: had been invaded. sense performance duty When the of his re- Bustamante-Gamez, In United States upon private an to enter quires officer denied, 1973), (9th cert. F.2d 4 Cir. conduct, property, his otherwise a tres- 40 L.Ed.2d 559 justifiable. original tip Here pass, is eventually seeking step of (1974), the extra plus sighting from the air dictated a Once warrant was not taken. a search out investigation to determine whether police peace officers reason again, transported. goods stolen was to obtain evi property entered entry the circumstances an onto Under possibly a car stored that case dence—in property purpose making of marijuana. containing garage within a justifiable. More- general inquiry was circum that while the admitted over, The court trespassing even if the officers were sight lost (involving having private property, trespass stances does not neighbor narrow in a rather question illegal of itself constitute an search car [cit- handled hood) ing have been could cases]. warrant, that tres a search waiting for added). (emphasis F.2d at 278 Once a fa was not to be eavesdrop passing officers property, ob- upon exigent circum technique, vored gave rise to further evidence served search, the eventual justified stances It and seizure. also a full scale search conceivably involved that was trespass case, that, occupant of in this appears condemn a search cause to per se informant) (the anonymous property the fact spite was in of This unreasonable. nec- But it is not consented to search. found, “the officers had that, as the court upon such place any here to reliance essary car, loaded only to believe cause validity the search. support fact to contraband, garage. En was in the of an common characteristics The most purposes of driveway was for tering the audio, vantage point for gain e., to overhear.” ‘search’ —i. visual observation are aware- olfactory, or evidence, likely presence even reach ness of did not Circuit The Ninth of that evidence for destruction privacy potential invasion -type Katz of a than required delay (though lower standard possibility because BAZELON, knowledge suspects possessing Judge, actual Chief dissenting: im-' evidence have discerned officers’ supporting cause the war- arrival), impracticality in and the pending arrest, entry, rantless search and seizure of innocent persons, inconvenience to terms of gained evidence this case was po- tipping-off suspects, possibility wasted lice knowingly trespassed pri- officers aon time, cordoning waiting area off the vate peer lawn order to through a base- presence cause probable for to arise. panel opinion ment window.1 The in which of these been of several characteristics has joined I concluded this that search un- the majority opinion noted in this case. I lawful. continue believe to this conclu- U.S.App.D.C., at (Maj. at--of 182 op. sion accurate subsequent is and that the F.2d). 843 of 561 intrusions were thereby rendered unlawful. The Katz decision did not vitiate prior all Johnson, See United Ralph States v. No. on It case law and common law searches. 16, 1975, 73-2221 June slip at 714-16. Al- to of requires reference standards reasona- panel the though opinion did not solely rest around expectation up prior ble built that issue this because it had not been briefed persist- law. such which has One standard upon appeal, further reflection feel I for, after, meaning helped provide ed that the the illegality of initial window Katz is the police onto legitimacy entry provides observation a sufficient as well as owned, areas, even open though privately the sturdiest po- basis for invalidating the investigation. of an Once that the course lice action. the accomplished, plain been view has apply subsequently test will as to evidence It is clear all the foregoing

obtained. from I. APPLICABILITY OF THE police officers had to be PLAIN ERROR RULE position they were when obtained majority Accordingly, view.” asserts “plain their search window legal. appealable search issue is only under Compare, States, exist until 1. cause did not Dorman Probable v. United 140 U.S. 313, peered through 321-323, App.D.C. 385, An had anonymous tip by the basement window. 435 F.2d 393-95 prob- (1970) (en banc) (probable itself constitute cannot cause must be clear- Texas, 108, Aguilar ly v. 378 U.S. 84 justify search, able cause. espe- shown to warrantless 1509, (1964). 12 S.Ct. L.Ed.2d 723 Nor was cially night). tip sufficiently corroborated the officers justified by can Nor search window light emanating initially saw the base- Ohio, Terry 1, analogy to v. 392 U.S. satisfy Draper ment window to v. United 1868, (1968). 20 L.Ed.2d 889 See note 9 infra. 329, 307, U.S. S.Ct. 3 L.Ed.2d 358 79 not, Terry Judge opinion as does MacKinnon’s Spinelli As in v. United 393 327 implies, probable read cause out of Fourth 410, 419, 89 21 637 U.S. S.Ct. L.Ed.2d by making Amendment “reasonableness” the independently here corrobo- constitutionality. creating sole test In only anonymous rated tip one small detail of the exception probable requirement, to the cause Draper police independently whereas Terry clearly principle Court reaffirmed the tip in all corroborated a detailed portant respect. but one unim- probable generally required, cause was Terry 392 U.S. at S.Ct. Under MacKinnon, contend, Judge not in- does as reasonableness is the exclusive test of constitu Aguilar, deed ymous not under he could the anon- tionality only when, brief, as the case with gave probable tip officers cause encounters, on-the-street question conduct in fact, appears search. he twice to concede been, “historically has not as probable (Concurring cause did not exist. practical be, subjected matter could not at--, ' at-,-of U.S.App.D.C., draft procedure.” warrant U.S. at 88 S.Ct. a Nevertheless, F.2d). argues t of 561 849-853 seriously 1879. It could not be maintained that anonymous tip exigent that the created circum- criminality searches a home for evidence of However, justified stances that the search. category. fall And into even if resort exigent merely per- existence circumstances procedure the warrant would have im been by-pass searching war- mits the officer case, practical Terry in this also reaffirms that Hayden, requirement. rant 294, 298, v. Warden exigent such circumstances eliminate the L.Ed.2d warrant, probable need for the need for (1966). Exigent circumstances have never Id. cause. thought been substitute cause. ment, appellant error rule him- position because as to what the of the de- suppres- self did not the issue at the (M.T. raise fense is? 7). Nov. p. 52(b) hearing.2 sion Rule Fed.R.Crim.P. The judge trial later allowed the other states, affecting “Plain errors or defects counsel supplement lead counsel’s re- rights may although substantial be noticed marks, as well as to cross-examine the brought were not to the attention of witnesses, government but his primarily grounded the court.” This rule is clearly prepared shows he was to treat is- opposing in considerations of fairness to the by sues raised one sup- defendant at the party preservation integrity pression hearing raised all. Atkinson, the trial court. States Later judge statements the trial con- 157, 159, 80 L.Ed. 555 firm this view. example, For counsel for (1936). Having carefully examined the Riggins, defendant the third counsel suppression hearing, I transcript of am Simms, cross-examine Officer asked Simms convinced that the unlawfulness of the win- if he knew he private was on property when “brought dow search was to the attention through looked the basement window. clarity the court” with sufficient to take “Yes, replied, sir, Simms I previously stated plain this case out of the error rule.3 Nor I knew it private was property.” At this plain should the error rule be invoked be- point, judge said, the trial broke in and appellant cause did not raise the issue of “Counsel, now don’t make your questions so argument the window search his before * * * * repetitious. I think it is well panel; panel properly determined established it private (M.T. property.” legality of the window search and the 1, pp. 99-100). Nov. After hearing this government ample opportunity has had rebuke, it would have been ap- absurd for rehearing. any defend that search on pellant’s points counsel to reestablish previ- event, even if I am in either mistaken ously made when turn his for cross-exami- conclusions, invoking plain these two argument nation or arose. error rule should not affect the outcome of suppression this case because the error here With the clearly hearing af- conducted rights. posture, fected substantial this the issue in determining the applicability plain error rule is not jointly with Appellant was tried five oth- appellant’s whether counsel personally er defendants accused of the same crime. raised the issue of the window search. Although recognized at the trial the court Rather, it is whether the issue was raised interests, divergence of the defendants’ by the defense team with sufficient clarity (T.T. 25, 26), pp. suppression hearing at the put government trial court judge naturally correctly the trial as- on notice that the issue had been raised. sumed interests of the individual de- quite The record clearly indicates that both allowing fendants were same.4 Before were. heard, any witnesses to be he said to the six defense counsel: above, As noted the various defense coun-

Very well. Now which counsel will sel testimony serve elicited from Officer Simms spokesman for the defense counsel to at more than one point to the effect that he statement, preliminary make a state- trespassing knew he was when he looked majority gether. legality 2. The never makes clear how it feels Since the the window plain changes raised, error rule the result in this properly very search has been least case. required by fundamental fairness is to remand this case to the trial court to take further evi- Judge separate Leventhal in his concurrence any inadequately developed dence on factual recognizes that the issue of the window search issues. brought to the attention of the trial court. concludes, however, He the record is not though 4. This is so even the defendants had not sufficiently developed permit appellate re- joined (M.T. suppress. all in one motion to correct, view on this issue. If this were 1, p. 7.) Nov. doubt, infra, I see note 10 I see no reason for penalizing appellant refusing review alto- (M.T. through the window. Nov. at error rule is applicable on appeal 100). Moreover, argument at oral on the grounds appellant did not challenge suppress, one defense lawyer the motion to window search at the suppression hearing. search, challenged the window ar- squarely Nor can it reasonably be suggested that guing: the en banc court should not review this honor, in I reviewing testimony Your case under review; ordinary principles of out that first would of all the policies underlying the plain error rule call. anonymous That in itself require do not its application. The chal- enter' would not sufficient lenge to the window search has been ex- premises. pressly brought to the attention of the trial stepped Officer Secondly, upon Simms banc, court and this court en so neither the private property of individuals in or- government nor the system court has been to look the window to see the der prejudiced way by the failure of gave that then some corrobora- activities appellant to address the issue before the anonymous call. tion panel. The Government has in fact defend- stepping private We maintain ed the window search at suppression call just anonymous in and property hearing and in its brief and argument be- (M.T. 46) iiiegal p. itself Nov. fore en banc court. added). (emphasis Furthermore, I even if am mistaken and Furthermore, government at counsel the plain error rule should be applied in this argument argument countered this oral case, the panel properly acted that determin- length concluding some the initial in- ing legality trusion, of the window “if in fact it was one search. An appellate court can one or a notice sua sponte plain was lawful reasonable one taking affecting into consideration all error rights circum- substantial not 9, 55-6). (M.T. its, pp. brought stances.” Nov. to opposed to the trial court’s, States, attention. v. Silber United majority concededly is T-he correct in ob- 717, 1287, 370 U.S. 82 S.Ct. 8 L.Ed.2d 798 serving that the unlawfulness of the win- (1962); Atkinson, United States v. supra, primary argument dow search not the States, and Tatum However, v. United suppression. 88 U.S.App. for the issue was 386, D.C. clearly (1951). 190 F.2d 612 brought to the attention the trial Here there be government through question can judge and the testimo- little that the unlawful ny argument, 52(b) Rule is all window search “affected substantial rights” requires.5 plain It seems therefore that the within the meaning 52(b).6 of Rule Al- clearly 2253, fact (1973), window search was 41 peti- L.Ed.2d 20 though strenuously challenged not before the unsuccessfully sought tioners to advance on apart court trial sets case from other cases appeal ground objection for the of evidence plain where this court has invoked the error argued had not to trial court. The White, U.S.App. In v. rule. United States 139 Supreme objection Court held that should 32, (1970), F.2d D.C. 429 711 the court refused heard, stating: have been plain find to error in the admissibn of evidence petitioners In view of the fact that did chal- appellant where the neither filed motion lenge admissibility . . . testi- suppress objected the evidence nor to its ad- trial, mony proper at we it think was for the Smith, at trial. v. mission United States 160 Appeals grounds Court of to consider ail re- 221, U.S.App.D.C. (1974), 490 F.2d 789 is simi- objection. underlying lated to that appellant object lar. There the did not at all n.5, case, Id. at 211 94 S.Ct. at 2259 n.5. In this damaging the admission certain evidence appellant seeking argu- is to advance a new 226-227, Id., appeal. until case appeal, give ment on but rather more em- 490 F.2d at 794-5. See also United v. States phasis argument previously to an made. 95, Diggs, U.S.App.D.C. 173 522 F.2d 1310 (1975), al., suggest and United States v. et Johnson 539 6. There are cases which that reversal (1976). plain 181 F.2d requires on a error rationale more than a Finally, simple finding Supreme that the a recent error was not Court case offers harmless. guidance g. Leonard, U.S.App. E. United considerable States v. 161 36, 41-42, 955, properly (1974); whether the window search is D.C. 494 before F.2d 960-61 States, 211, Grasso, 317, In us. Anderson v. (3d United U.S. United v. States 437 F.2d relatively Although majority expressly minor in never trespass was

though affirming is the window states gathered distance, the information terms doctrine, plain under the view this is search for all of justification supplies thereby when, what quot- it has in mind evidently intrusions.7 subsequent plain ing language Seventh Circuit cases,8 it view concludes that “tech- a mere OF THE THE UNLAWFULNESS II. trespass” “did not transform an other- nical WINDOW SEARCH investigation unrea- wise reasonable into an -- (Majority opinion p. sonable search.” are, searches arrests Warrantless F.2d) U.S.App.D.C., 841 of 561 p. of 182 excep- narrowly a few defined an Conceptually, officer has not conducted g. Katz v. e. se, per unreasonable tions a search when he merely observes some- 357, 347, S.Ct. United U.S. view. United States thing plain is in govern- 507, 19 L.Ed.2d 576 Hanrahan, 663; v. Ponce v. 442 F.2d at demonstrating bears the burden of ment Craven, (9th 409 F.2d 621 1969). Cir. How- Coolidge exception, an applicability of as Harris makes ever, clear, plain view 443, 455, 91 Hampshire, 403 U.S. v. New operates only exception when the officer (1971). In this 29 L.Ed.2d 564 S.Ct. positioned place right in a where he has a case, applicable only exception arguably otherwise, be. If the rule were expressed “plain view” doctrine as is the eviscerate the requirement could warrant 390 U.S. Harris by maneuvering positions themselves into Harris, 19 L.Ed. 1067 S.Ct. object being sought where the plainly “objects falling in the Court wrote that view, regardless within of its location. The a right officer who has view of the majority’s argument thrust of must be position have view are be Harris, that, the purposes an officer introduced in may to seizure and subject be is not to place considered as in a Harris, supra, evidence.” where he has no to be when his tres- added). private (emphasis pass 19 L.Ed. 1067. onto property is minimal.9 denied, Cir.), why majority must wonder cert. One has done 52(b), (1971). purpose how 29 L.Ed. 698 Fed.R.Crim.P. By so for a other than rhetorical. ever, plain cogni makes defects plain rule, errors and trial relying majority the on error the is they rights,” if affect the zable “substantial expressly deciding able to avoid that the win- precise standard under which Fed.R.Crim.P. leaving strong dow search lawful while the 52(a) requires whether courts to determine suggestion majority simply that it was. The is harmless. And are numerous error there “we concludes do not think that Officer plain where courts have on er cases reversed testimony exposed plain Simms’s ing affect- error finding miscarriage without of ror “manifest rights requiring substantial us to reverse g., justice” similarly grave E. or abuse. United conviction,” which, this a statement of law I 213, McClain, 218, U.S.App.D.C. v. 142 States submit, analytic beyond meaning has no the 241, (1971); King F.2d v. United 440 246 bare result. 318, U.S.App.D.C. 125 372 F.2d 383 event, (1967). ap In harm to I think the Conner, 1320, 8. States United v. 478 F.2d 1323 higher pellant is sufficient to meet a threshold (7 1972); Hanahan, Cir. United States v. 442 simple prejudice, appropriate, if is than particularly one (7 1971). Cir. F.2d 649 light presumption in of that the in doubts should be defend serious resolved majority’s 9. The discussion of the Hanahan favor v. ant’s established Kotteakos - p. case on p. of 182 U.S.App.D.C., 841 of 750, 764, 1239, 328 U.S. S.Ct. 66 90 (1968), 561 F.2d lends credence to this summa- (1946). L.Ed. 1557 ry argument. however, possible, of its It is to majority plain presupposes justifying 7. Since the error rule the read the as the search on error, appears Ohio, majority analogy Terry of of an existence but the to the basis to v. 392 lawful, 1868, (1968), conclude that the window search 20 L.Ed.2d - Majority opinion, p. U.S.App.D.C., suggestion with of accordance found the F.2d, majority supplemental p. 841 the of 561 and since Government’s brief. P. f. 11. suggests argument that an error was committed never would be that window the “plain” was not did “affect substan- search was reasonable or not because it was the least rights,” logical neces- means tial there seems to be no intrusive which the could cor- sity veracity dragging plain anonymous tip. into this the error case. roborate of the I Second, argu with I several difficulties this the Supreme repeated- have Court has First, trespass the cannot be dis ment. ly exceptions stressed the to war- it of hand because was minimal missed out requirement rant in scope. narrow of distance.10 In both Hanahan terms Coolidge v. New Hampshire, 403 U.S. Circuit to and Conner Seventh was able L.Ed.2d 564 trespasses as label the inadvertent Jeffers, 48, 51, United States v. irrelevant be “technical” therefore Here, L.Ed. even ability cause did not enhance the they though legality of the window search objects view to observed. challenged suppression at the hearing case, that, specifically the court each found government never demonstrated that it observing not the officer’s foot whether or exceptions recognized fell within one of the strip grass thin happened alight on the to the warrant requirement. To con- through window separating garage trary, testimony Officer strongly Simms’s observation was made which the suggests that view doctrine can- on were public sidewalk which stand justify the search. window Simms ad- ing, the officers could and did view he knowingly trespassed mitted to accom- garages public from the side interior of search, plish not, knew he was Hanahan, walk. United States 442 F.2d Harris, to use the place words of in a where 1971), (7 Cir. v. Con United States right he had a to be. ner, 1320, 1323 Here, (7 1973). 478 F.2d Cir. Furthermore, I agree Judge Leven- contrary, government to the has not observation thal’s focussing wheth- its burden of demonstrating satisfied trespass er a is minimal terms of distance trespass the officer’s was technical responsive is not broad Thus, being similarly sense of immaterial. Amendment, is, the Fourth as he disregard trespass I cannot order observes, correctly trespasser whether place that Officer was in a conclude Simms encroaching be when he “was peered expecta- where he had reasonable privacy the window. tion of that comes within the fair assertion, majority making argu- majority’s do ment. The opinion this not read Officer Simms testi- majority devotes the bulk its “stepped steps fied that he over about five substantiality ato discussion of the 1, p. five feet” to reach the window. Nov. M.T. trespass. making If a least intru- argument, substantiality sive means trespass Second, case, in the circumstances of this it long would be irrelevant so as it was reality trespass defies to measure the from the trespass necessary ac- least substantial porch front rather than from the sidewalk run- not, Furthermore, complish the search. 1 do parallel ning ently appar- Although to the street. Leventhal, Judge believe unlike development fuller factual throughout had been assumed the course necessary appraise whether litigation that the officers could have walked justified trespass along can these lines. questions, they to the front door to ask did not If, example, a warrantless search without suggest nor do so does the record intent on probable accomplished a cause substantial part fact, to In their do so. the Government trespass justified be as the least intrusive could supplemental brief contends is that it “ludi- tip, corroborating then it to means of a is hard suggest they to crous” so. record protected should have done imagine what would be under the Govt.Supp.Br. p. reading is, 10. A fair of oth- the Fourth Amendment. This contention words, suggests type slope argument slippery if the er that should officers insis- rejected corroborating anonymous tip, out hand. tent on way only could have done so fact, point 10. In the intrusion was more trespassing. This case therefore differs from First, significant majority than indicates. Conner Hanahan where the officers tres- trespass majority states the court found the passed inadvertently imperceptibly. See (Draft “not to be more than two or three feet.” 443, Coolidge Hampshire, 470, v. New 403 U.S. -p. U.S.App.D.C., p. 182 561 842 of 2022, (1970). 91 S.Ct. 29 564 L.Ed.2d The fact F.2d.) finding: The court never made such a that the officers could walk here to the window judge merely trial observed that tulips than on cobblestone rather immate- standing counsel was two or three Government substantiality measuring rial in their object a certain while he was at- feet from tempting intentional intrusion. geography demonstrate the of the 1, Contrary p. M.T. Nov. 105. relevant house. 858 347, States, v. 389 88 Amendment.” Katz United U.S. S.Ct. Fourth of the intendment - 507, (1967). Although 576 concurring p. of 182 19 L.Ed.2d U.S.

(Leventhal However, I F.2d). trespass law of formed the bedrock on 845 of p. App.D.C., rest, the subsequent expansions that we should which these with his conclusion disagree per- in effect that a majority today states of the window legality determine not ex- always have a reasonable son does not does not ade- the record because search spied upon by that he will not be pectation invad- whether the officers quately disclose officer, thereby trespassing police con- privacy.11 In expectations of ed reasonable verting expansion of the Fourth Amend- view, of the record on sparseness my Contrary to the ment into a contradiction. govern- is attributable this per- it is reasonable for a applica- majority, I think to demonstrate ment’s failure expect his activities to be safe from doctrine. Most of son “plain view” bility of trespass who must submit, expect eye person that our of a would us, would I light In of the only be view him.13 narrowness of private can actions exceptions, govern- warrant I doubt the prowlers. This by trespassing observed justify ment would ever be able to a search in the middle of especially true would be grounds when it was neces- people most would be view I believe night.12 sight peering sary trespass of a face for the officer to in order to at the so disturbed in the mid- basement window achieve the view. through their they would call the night dle of CONCLUSION decision, today’s after police; there. may already be respects this case is not an certain dissent, there appealing one in develop- case turns the Ironically, com- appellant little doubt that straight on Amendment ment of the Fourth Nevertheless, charged. the offense mitted thought At one time it was head. its upheld because of what a search is not to be physi- forbade the Fourth Amendment my it discloses. I understand brethren’s v. United trespasses, g. e. Olmstead cal escape the offender 564, reluctance to let 438, 72 L.Ed. 48 S.Ct. 277 U.S. law because “the constable blundered.” Supreme Court has recently, the 944. More Supreme When the Court created the exclu- of the Fourth protection view the come to sionary reluctantly. rule it did so It had no expansively, holding that more Amendment authority discipline the law enforcement within its ambit. places come people and worse, opinion). Judge appropriate Leven- For better or for the Fourth it be as 11. Nor would - U.S.App.D.C., p. protects guilty suggests, p. Amendment as well as the of 182 thal F.2d, n.l, applicable decision on the avoid innocent. I find these words in this inadequacy of window search because case as well. analogy regarding possible to Ter- the record Santana, 38, 13. United States v. 427 U.S. Ohio, ry L.Ed.2d 88 S.Ct. 49 L.Ed.2d does not sanction n.9, supra, I neither As I noted in such a contraction. In Santana the Court held majority making argument, such an read the doorway standing that a woman who was persuasive argument in theo- find such an nor “public place” the street was in a visible to ry. susceptible to warrantless arrest therefore Katz, upon Quoting 389 U.S. cause. years ago, Judge case several In a similar citing 507 and Hester v. United equally Wright to take seri- found it difficult L.Ed. 898 ously government claim officers that it was immaterial the Court noted merely damaging evidence was observed initially spotted the woman instructive: view. His words are private property because she when she was knowingly Certainly no one bent on crime is “knowingly” exposed public. herself to the public going expose the evidence Hester, open As in which fields the citation evidence was locked in convict. Here the unprotected by the Fourth were held to be appellant suggestion garage, so owned, Amendment, privately even when (or public knowingly exposed it to the clear, way makes Santana in no cuts back on police) would be absurd. Katz. U.S.App.D.C. Wright, States v. United (1971) (dissenting F.2d authorities; Amend-, so to keep the Fourth

ment becoming a dead letter because

lawof enforcement lawlessness its hard

choice was to adopt the rule. The rule high price

exacts a which can be avoided if

either the legislative executive or branches put teeth into the Fourth Amend-

ment. Although the courts have long

sought help in protecting the Fourth

Amendment, legislative neither the or exec-

utive branches have taken steps effective

discipline penalize the offending law of-

ficers. Absent such steps, the courts must

forthrightly choose either to abandon the

Fourth Amendment or refuse place their

imprimatur on its violation.

UNITED STATES America

Ray WILLIAMS, Appellant.

No. 75-1592. Appeals, States Court of

District of Columbia Circuit.

Argued Dec. 1975.

Decided Feb. 1977.

Rehearing April En Banc Denied

Case Details

Case Name: United States v. Ralph Johnson

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

Date Published: Jun 20, 1977

Citation: 561 F.2d 832

Docket Number: 73-2221

Court Abbreviation: D.C. Cir.