United States v. Thomas D. Harris

America, STATES UNITED HARRIS, Appellant. D.

Thomas

Nо. 22742. Appeals, Court States Circuit. Columbia District 10, 1970. April

Argued 12, 1970. Aug.

Decided Rehearing Denied

Petition Sept. Merrill, Washington,

Mr. Richard A. (appointed by Court), D. C. for appellant. Gregory Brady, Mr. C. S. Asst. U.

Atty., with whom Messrs. Thomas A. Flannery, Atty., U. S. A. and John Terry, Atty., Asst. U. S. were on Bress, brief, appellee. Mr. David G. Atty., U. S. at the time the record was filed, appearance ap- also entered an pellee. TAMM, Before MacKINNON and Judges. Circuit WILKEY, WILKEY, Judge: Circuit Appellant (Henson and two others Jordan) were convicted of armed rob- bery, dangerous and assault with a weapon, appellant conviction of resulting in a sentence of 7 years under the Youth Corrections Act.1 Appellant questions, raises first, regard to the apartment search of his and seizure of therein, second, as to sufficiency of the evi- dence. We find that the seized evi- properly dence was admitted, along with other evidence in the case was jury sufficient for the to find appellant guilty charged. I. Pertinent Evidence Leading Up A. Entry Events Appellant's Apartment into May afternoon Inc., by three Press, Merkle was robbed employees men as were armed delivering two weekly payroll department. shipping Merkle One employees were wounded. handling routine of the Merkle every Friday 3 o’clock cash was around delivered an armored car payroll department, central from which envelopes pay at a time definite § 18 U.S.C.A. 5010 buildings apartment. inspection After to the other handcarried exception Chevy II the four officers then Nova Press. With the Merkle proceeded pick- Thomas Harris’ followed route exact investiga- apartment Friday, slightly their men, to continue up each varied prudence inspired by paying tion. With timing and the routine knowledge robbery had precise- that an armed and 4:00 cash 3:00 between just employee and one been committed same, known to ly and would shotgun wounded, Sgt. ex-employee carried employee Merkle Blake plain view. the rob- Press. the afternoon On department bery, shipping em- since the Sgt. knocked on Arscott When pay- ployees paid, had not been door, inside a voice from employees to all issued checks master Sgt. replied inquired it?” The “Who is Harris, Appellant p. at about 4:15 m. Immediately the officers “Police.” m., although p. he checked out 4:30 footsteps move- heard and considerable departed only employee was the who apartment if from the as ment inside up day picking check. his being After furniture shifted. were Eyewitnesses three described the Sgt. one and a half minute interval get-away robbers identified repeated Arscott the announcement description car license number and police told those officers and were Chevy quick as A a maroon II Nova. open the door. One Henson inside tag record check the license showed herein) (also and convicted defendant registered car, to a a 1957 different opened Henson then the door. With Harris, Ford owned one William appellant juvenile, neither was a but living Avenue, By on Anacostia S. E. nor Jordan. Harris police sheer chance a officer remember- recently given ed that he had a traffic juvenile well were Henson and the (the appel- ticket Thomas Harris Sgt. unfavorably Blake known herein) driving Chevy lant a maroon resulting prior encounters, in their from Nova, checking II and in records theft, auto for housebreaking, arrests discovered the address Thomas Henson resembled and other offenses. Street, given Harris had was 3535 J given general description of one the immediately N.E. Police cruisers went significantly, Most the three robbers. Avenue, both Anacostia S.E. and J however, threshold at the stood Street, reported get- to look for N.E. the apartment saw the the officers away police spotted a car. One cruiser large through open stacks door Chevy Nova, II to be later determined sight table, dining on coins room by appellant Harris, owned in a Thomas logical suspicion that which aroused the parking near lot 3535 J Street. part of the these stacks of coins were engine warm, plates was still license payroll. stolen missing, plate were but bolts license ground lying on were beneath Entry, B. Search Seizure By bumper. rear this time the officers Following sequence rapid-fire had also ascertained the Merkle apart- еvents, entered the the officers shipping department an Press had em- instantly” the door ment “almost ployee named Harris. testimony opened. Sgt. Arscott’s Henson whether receiving that he was not certain Upon report of the dis- he apartment if Sgt. Arscott, Sgt. car, let him into the covery of the that, enter, Henson but asked if could Blake, officers he two other door, opened the al- Street, stepped back as While J N.E. drove to 3535 inquiry lowing to enter. On away Sgt. the officers ob- Arscott about one block explained coins (later de- Henson named as served one Jordan girl- cousin, sister, herein) been saved fendant and convicted Sgt. down- Recognizing Arscott went young friend. While man. unidentified con- nearby the exact Sgt. to ascertain stairs to call Arscott, into a fled Jordan hallway payroll, ficers as stood in the out other officers tent of the room, living-dining appellant side threshold of around walked entry:3 just prior enter other rooms apartment. detective observed One had fled in a The armed robbers living open through door bearing Nova, Chevy maroon II license protruding pistol butt room closet a plates registered a Ford owned top After shelf. from a box Harris; one William Sgt. this, being removed Arscott shown Harris, e., i. Another doing shelf, and so box Harris, bearing Thomas last same pistols other two discovered the license name the man to whom The three in the box. holster shoulder plates registered, owned a maroon pistols description matched Nova; Chevy II after- weapons used Chevy Nova, A3. II a car answer- pistol found to noon. One get-away description by appellant Thomas purchased vehicle, engine and exhaust still eight Ballistics months before. warm, bearing plates, no license gun proved which had tests plates lying with the license bolts for the wounding em- the Merkle fired the shot ground bumper, the rear under ployee. parked appel- near the address discovery pistols After Harris; lant Thomas formally juvenile were Henson and the person 4. A named Harris worked they were under arrest. advised that for had the Merkle Press which been Sgt. went into the bed- Arscott then before; robbed an hour room, pulled mattress, and un- back the money 5. of taken Part the in the $5,000.00. Ap- approximately covered coins; consisted of pellant subsequently arrest- Harris policemen 6. ed When the four knocked elsewhere. apartment the and door of Harris’ Suppress II. Evidence Motion the themselves, occupants identified the Apartment Found in the answering within were and slow people of sounds of movement Cause to Arrest— A. Probable heard; furniture were Entry without Warrant 7. Henson answer- The individual argues2 Appellant the that ing roughly description door fit apartment from his obtained robbers; of one of the suppressed should have been because only police 8. officers not One of the police entry and arrest of co-defend recognized Henson, knew that unlawful, ant Henson was and therefore prior had been involved in offenses entry the search which followed theft; housebreaking and auto illegal arrest was an search. To argument Simultaneously opening evaluate this we now consider they police door, the situation as known to the of crossed the of the but before appellant specifically 2. While has not factors recounted be- addition to the argued entry finding low, that without warrant in- that based its trial court search, rep- probable validated the arrest and a the issue on cause the officers had clearly present prosecuting is on the facts this ease. at- resentation made torney We consider holding it here because our recent had been told that the officers neighbors in Dorman v. United men had been seen four U.S.App.D.C. ; Chevy entering getting II and F.2d out of 15, 1970) (ere banc) (April apartment. makes clear This information was entry pur- put evidence, without warrant for either at the hear- never pose making arrest, is, subject suppress ing an or at to ex- on trial. the motion ceptions proper circumstances, gov- a de- Hence it be used cannot prohi- probable erned the Fourth cause existed. Amendment termination bition of warrantless consider whether intrusion into a we ourselves Therefore private dwelling. probаble based those cause existed actually in evidence. facts grave involved, stacks First that a saw offense is threshold, officers particularly on the one is a crime of various denominations coins in violence. dining within. table room knowledge had officers On the Here armed robbers had snatched three appellant coming pay- Harris’ before wounded one above), had (items

apartment 1-5 roll carriers. warrant probable secure cause to Second, interrelated, obviously Although they had anyone’s arrest. suspect reasonably be- Harris’ led to Delay in arrest lieved to be armed. recollection fortunate may of an felon well armed increase description plus the arrest traffic recent danger meanwhile, community to the matching automobile time of officers car, himself get-away arrest. This consideration bears Press employee Merkle materially justification for a one certainly identified not been entry. warrantless officers Until robbers. three reasonably The officers believed entering the build- prior to saw Jordan encountered, if robbers, apartment, in the Henson saw Sgt. armed, and on that Blake belief of them suspicion that either had no shotgun proceeded carried a as he robbery. was involved apartment. pistol suspect’s In Dorman wounding the which had fired the shot U.S.App.D.C.; decided actually employee found Merkle en banc 15, 1970, April court apartment. within the question “whether decided merely Third, there exists aas warrant general requirement of a cause, probable the minimum of entry sub into house condition requisite has even when warrant entry exception the ject where an to beyond issued, that a clear but making arrest an purpose of is for the including cause, showing probable of doing, we suspected In so of a felon.” “reasonably trustworthy informa- the constitu principle, said: “the basic tion,” suspect the com- to believe that that, room safeguard with tional the crime involved. mitted privacy the exceptions, assures citizens point at some discussed This will be security unless homes and of their length below. judicial it must be officer determines strong reason to believe Fourth, applicable in case overridden, not being premises suspect the entry property, also of but to search for entered. entry to arrest in of in order case the response knock officer’s to the further, suspect.” this “room But opened defendant was door exceptions” where includes the situation description Henson, who answered may requirement a warrant of “the robbers, simultaneous- and of one of the do not where circumstances excused ly coins on the officers saw delay, ob incident to tolerate like table. making warrant, taining a of an officer suspect Fifth, a likelihood an arrest.” swiftly apрrehended. escape not will if discussing principle “the excep establishing was urgent an this consideration of need as To extent some entry seeing If, Henson present justifying a warrantless tion here. Dorman arrest”, had been court in officers this coins the make an and the warrant, con the oc- material required of referred to a number to obtain pertinent of siderations, apartment, aware cupants which are now of most might them, in interest bar.7 the officers’ case States, supra, 6. Id. 4. Dorman v. United 140 U.S. App.D.C. ; 435 F.2d at 390. U.S.App.D.C. at-,--; Id. F.2d at 392-393. Id. ensuing point justifica- this and interval the rationale

well have used entry escape. tion for warrantless make arrest, lawful in as stated court Sixth, en- the circumstance that Dorman, play. At came into though try, consented, made not opened moment was the door peaceably. probable un- loot from the was here, entry con- whether there was face to veiled, the officers were face not, peaceably made without sent or prime concatenately suspects force, except the use of as to whatever supplied probable cause with sufficient may display arms be con- extent point suspects. to arrest these At this as force.8 strued expected the officers cannot have been develop- Up a certain time to have returned bowed out and head- not at bar facts are ment of the cаse quarters procure a warrant. To entirely comparable Dorman. For, suspects prime retain control of the Dorman, police probable had cause they needed to make an loot visible going prior Dorman’s to arrest arrest, which did. immediate residence, temporarily unable but were cause, fact, probable They In truth and in to obtain a warrant. went to thus exigent prospect circumstances, Dorman’s warrant residence delay obtaining a effecting purpose unreasonable for the his arrest. warrant, converged however, police and manifested Here, approached all apartment, door themselves at the moment for the opened making apart- purpose arrest, an rather and revealed investigation contents, ment’s both human to continue their order robbery. material. moment the of- As of this actions an unsolved Since the police justified by probable ficers not have cause to officers anyone expounded rationale Court arrest knocked many Dorman and the cases relied door of Harris’ cannot apartment, upon prior therein. be faulted for failure to obtain an arrest warrant. language In the Dorman there * * * sprang cause into Probable “urgent justifying an need being only opening upon the the door entry warrantless to make arrest.” knock, response to the officer’s We therеfore conclude Henson, tentative identification probable arrest, for the cause importantly, most simultaneous exigencies the of the circumstances upon revelation of the stacks of coins they apart demanded the enter clearly inside, the table from out visible immediately ment warrant without apartment. of the At side threshold order to arrest.9 effect the prior 8. Our cases have established that en- U.S.App.D.C. 362, at 427 F.2d try through display a obtained of arms attempt to In Curtis court did regarded entry an cannot be with con- known to whether facts determine occupant. sent of the Gatlin v. United police prior their encounter with Curtis U.S.App.D.C. 123, 117 326 probable cause would have constituted for (1963) ; Judd 89 666 point warrant, to two addi a but we U.S.App.D.C. 64, (1951). 190 F.2d 649 light as tional which came to facts However, Dorman makes clear apartment upstairs of door fact of an unconsented nevertheless one, opened. were: In Curtis those facts e., entry, peaceful i. of without the use as the identified Curtis rob witness physical force, is a de- actual relevant ber; secondly, run. In started to Curtis propriety entering of the termination of opened the case when the door one at bar effect a warrant an arrest. Henson as match of the identified officers robbers, Curtis, ing description U.S.App. one of the of In States 138 May 19, coins stacked and all saw the the officers D.C. decided language banс, dining by rehearing In the on the room table. this court on en Curtis, those additional of this situation likewise “made it court the factual police “pertinent issue of facts were both reasonable for the set forth at arrest, waiting probable warrant, and on for a and cause for once without forthwith, urgent taking prepared exigencies.” (138 action for need of to come shotgun prominently officer displayed carried B. the Manner Lawfulness of of perhaps and two others had Entry Appellant into pistols drawn.11 When the officers Apartment door, they know knocked on did not that, Appellant also contends they greeted whether would be in a probable even if the officers had cause by normal manner or answered hail arrest, yet entry the manner into greeted They bullets. in a appellant’s apartment was unlawful and instantly they furtive manner and therefore search and follow seizure sighted pile coins, supplied illegal. sup must be declared probable them with cause to believe port appellant points an of this al were face to face with armed leged officers to announce failure vagueness police robbers. The of the purpose requirement their and meet the sergeant’s testimony exactly as ‍‌​​‌​​‌​‌‌‌‌​‌​​‌​‌‌‌​​‌‌​​‌​​‌​​‌‌​​‌‌​​‌‌​​​​​‍to what 3109,10 alleged of 18 an U.S.C. § sequence said he and his of movements hazy part recollection on the officers’ critical, explained at this time can be sequence as to the exact events normal human at a reaction time apartment the time crossed the expectancy. tense these circum- Given requires threshold. Section stances, human recollection would executing officers a search warrant customarily precision, it would lack to, must, entry their unless consented Sgt. strange if indeed be Arscott did give authority pur notice their precisely recall what he and what said pose entry and be refused before Sergeant steps Blake took premises to can into the break entering a moment room. At such requirements searched. These requires we do not think that § apply equally to been held to entries carefully to execute a officers purpose making arrest with precise quadrille await schooled out warrant. Miller v. United moving. proper responses before 1190, L.Ed.2d U.S. S.Ct. in such situa- The normal reaction move evaluating tion for the officers recollection would be both the room, meeting quickly dominate into the of the officers resistance, situation, prevent requirements § failure to meet the member quick third recapitulate pertinent look cir- take we persons gang (only two on officers cumstances stood hiding might visible) else- who men had were threshold. Three armed sight of apartment. employees plant where in the wrested a before; employee piled less than аn hour one certain- the table would the coins miscreants; shot had been ly inspire normal the officers registered automobile to Harris what, apparently that reaction and nearby the motor been found comply The officer’s occurred. .failure warm; approaching the officers were requirements of precisely § with justified occupied exigencies known to be company Harris, employee an of act which demanded the situation prudently quickly of their own came in interest robbed. The officers resistance; safety.12 prepared one the officers violent The fact that meet necessary warrant, making waiting in or for a admittance without refused liberate aiding entry purpose person him of a himself or an unconsented for (Em- U.S.App.D.C. 363, (138 warrant. at of the arrest.” 427 execution added.) phasis F.2d at provides testimony not the as to whether or 10. 18 3109 : 11. The U.S.C. § weapons open any may their outer drawn break officers had The officer other house, or window of inner door inconclusive. or any part therein, anything of a house argue warrant, if, does not a search the Government to execute While authority purpose, he is ex- and situation notice his that the necessities 82 entered, provisions per- are must be “we inves- 3109 stated as § one, “you robbery,” merely

tigating than not one rather missive which grounds breaking arrest,” parts not not should does result are under was, invalidating arrest house.13 entry; effect, at Making identity moment police made known their when, so, up particularly until this is apparently officers notice sufficient opened, the offi- authority.14 However, generally instant the door it is purpose investi- was in fact still cers’ purpose held that the desired gatory. entry given. specifically must be As this court stated in Gatlin United case it is clear the instant States,15 requires section 3109 regarded entry as consented cannot be U.S.App. to, entering States, before to search or make an v. United 89 Judd arrest, 64, (1951); an officer must his F.2d Gatlin announce D.C. 190 649 123, purpose States, authority, U.S.App.D.C. 117 well as his v. United -x- ->: n * Here, admittedly, (1963), F.2d 666 Govern- there was 326 argue prior purpose no announcement ment does not that consent was given. Keiningham entry. assuming probable Even As held in cause we States, 272, arrest, U.S.App.D.C. 109 failure [defendant’s] illegal. alone makes the arrest entry 287 F.2d 126 without States, ordinarily to a “break- And in Miller consent amounts v. United where attempted the defendant ing” requires slam under statute door, police when he determined of- their the officers first announce seeking entry, purpose authority. Supreme ficers were Court held that this action in 18 U. word “break” as used [T]he might be the basis for the officers 3109, “enter without S.C. means § being virtually peti- certain that permission.” “peace- We think that a police tioner knew there were entry at his ful” not which does violate entry. prior comply communicated court the officers’ failure to cused Chappell opinion stated: 3109, such we are of the § exigent clearly existed, and circumstances totality We find the of circumstances they justified taken here. the action police entry in this case reveals that here was [I] made in “necessitous U.S.App.D.C. supra, Keiningham, 109 proper haste” [2] after manifestation of The Government at 130. F.2d at 287 authority purpose. entry suggest was that since seems U.S.App.D.C. 359-360, 119 e., the use “peaceful”, i. (emphasis added). at 938-939 force, physical need not that § 3109 support adopt this ra- complied with. the Govern- therefore do We Chappell v. position cites case the Government in the instant that pur- tionale ment’s U.S.App.D.C. States, specify 342 119 failure to the officers’ (1965) ; Washington entry merely v. United pose because the F.2d excused was U.S.App.D.C. 58, entry F.2d “peaceful.” here While was ; physi- “peaceful” and Ellison v. United that no in the sense U.S.App.D.C. used, F.2d 476 such and as cal force Washington However, entry Ellison without war- tend to circumstances, opinions exigent our decision written before see Dorman rant Furthermore, supra. Keiningham, U.S.App.D.C. ; Washington at--; 393-394, mentioned nor Ellison neither appear banc) (April 15, 1970, it does not en it was nonethe § appellants upon by the relied and therefore con statute without consent less “breaking” in those cases. under statute. stituted Chappell, post-dates our In 301, States, 357 U.S. 14. Miller v. United comрli- Keiningham decision, issue of the 1190, 312, 2 L.Ed.2d 1332 78 S.Ct. Chap- The was raised. 3109 § ance States, ; 117 U.S. Gatlin v. United any pos- pell however, court, decided 666, 123, 130, App.D.C. F.2d 673 326 comply in that 3109 with § sible failure (1963). by exigent circum- case was excused 130, U.S.App.D.C. 123, 326 F.2d author- in event the 15. 117 stances and that (1963). 666, ity purpose of the officers there 673

83 investigation. conducting reasonably arm dividuals believed to be door however, robbers, This, especially of a virtual in falls short view the ed petitioner certainty knew knew ex the the officers there gunman re- purpose not to arrest him. isted a third who was connection, except sight. quirement notice is not met we note that purpose, Supreme for the Government in Sabbath in refus of that Court ing entry au- had no ex admits the officers to find an unannounced door, petitioner’s by exigent thority to stated break cused circumstances must, agents except there- to arrest him. We had no basis “[t]he might assuming fore, petitioner did petitioner or was armed conclude ” * * * 19 required arrest, notice of au- not resist As receive the Ninth Gilbert, thority purpose.16 Circuit “it would observed justify refusal to excuse be difficult in is clear from record prior require announcement where to state stant failed case palpable peril life would create making purpose of an arrest before arresting limb of the officers.”20 We Nevertheless, they entered. Su operative therefore conclude that preme indicated Court has twice here, facts to meet with failure exigent may provide an circumstances requirements delicate exactitude the exception requirements of 3109. § subsequent did 3109 not invalidate § 309, States, supra, at Miller v. United arrest and search. States, 1190; 78 S.Ct. v. United Sabbath 1755, 585, 591, L. 391 U.S. 88 S.Ct. 20 the Search C. Lawfulness (1968).17 the lower Ed.2d 828 And the Premises exigent applied courts circum- Although Sgt. Arscott See, exception cases. stances 3109 § ju formally not advise Henson and States, g., e. 366 F.2d Gilbert v. United they until under venile that were arrest (9th 1966), denied, 923 cert. U. Cir 388 pistols, he tes the three he discovered 922, 2123, S. 87 L.Ed.2d 1370 S.Ct. 18 leave tified that were not free to (1967); Chappell 119 v. United money saw the he (1965).18 356, U.S.App.D.C. F.2d 935 342 through open We on the table door. taking place had a the instant case officers therefore the arrest as treat right quickly protect apartm to act themselves when officers entered suddenly when in search confronted with two ent.21 The search then was a 312-313, 1190, 301, testimony analysis, Although, 16. 357 U.S. 78 S.Ct. 21. on this (1958). explaining the 1197 statement to Henson’s property a sister stacks of coins Indeed, 17. footnote Sabbath the admitted, erroneously girl friend was Supreme Court stated: yet not advised since had Exceptions any possible constitutional 436, Arizona, rights, 384 Miranda v. U.S. entry relating rule to announcement and 1602, 16 L.Ed.2d 86 S.Ct. recognized, see have been Ker v. Cali- totality of the cir find that we ** * fornia, 47, 23] at [374 U.S. [83 case, such error cumstances of this (opinion 1623, 10 L.Ed.2d 726] S.Ct. beyond a reasonable doubt. harmless J.), Brennan, thеre little reason California, 250, Harrington 395 U.S. why exceptions might limited those not 1726, 23 L.Ed.2d S.Ct. apply 3109, also existed since § and, exculpatory entirely statement law, at of which common the statute is a presented, ad its in the circumstances codification. appel prejudiced not have mission could 591, 8, at n. at U.S. S.Ct. 1759. Harris, if he should have stand lant even Bosley Furthermore, 18. See also object to its use. 267-268, U.S.App.D.C. 263, at probable cause since the officers they entered, (April 1970). 1261-1262 even if the arrest did discovery place until after take 1759. 391 U.S. S.Ct. at guns, not neces conclusion would such a sarily require exclusion Gilbert v. United coins discovered, gun (9th since first Cir. 84 vestigating which in arrest, an armed be- lawful lawful incident company employee an of the victimized the at probable cause on based cause before. an hour shot about though a warrant. time, even justified completely in they Hence were items of evidence: three consider We searching surround- the immediate area dining room the on stack coins the ing possible for men arrested the two closet, guns table, in the the three pistol, weapons. Having one discovered the the mattress in $5,000.00 under they place, more in same found two bedroom. duty their own their it was both protection evidence to and for use as guns, think we the coins and As to weapons.22 seize the any standard. problem under arises from probable loot The coins were adjoin As tо the search of the through robbery, outside from visible $5,- discovery bedroom persons arrest- open The two door. mattress, in bills under 000.00 dining living room. in ed room — permissible area was within Through in the open of a closet an door by Supreme as defined Court de search pro- room, spotted living the officers Rabinowitz,23 cisions in United States v. truding pistol in a box butt of subsequent States,24 Harris United v. removing this the closet shelf. not be es.25 probably cas pistols other two discovered range permis within the narrower in- The officers were

shoulder holster. sible arrest as de- search incident plain special in and not as the result found view under circumstances California, properly v. here, a search. See Ker 374 would be admitted 1623, 42-43, 23, taking 10 regarded L.Ed.2d 83 S.Ct. U.S. even if the arrest is as not Having place discovery. 22 and note 726 until after infra. pistol protruding the butt of one from seen Additionally, items were seizable 22. these plain view, in on the closet shelf box “plain we view” doctrine. As under the required to at- the officers should not be tempt recently in States stated remove it the box without U.S.App.D.C. 120, Thweatt, 126, 140 at disturbing the box itself. The safe (June 1970) 1226, 30, : 1232 433 approach and reasonable for the officers responsibility Recognizing view our handling potentially take load- Fourth Amendment under ed, deadly weapon the box was to remove reasonableness, we hold that standard of safely closet order extract from the existing within the criteria of it is well pistоl Having from the box. done fruits, police in- to seize cases pistols two and discovered more or evidence of crime strumentalities process, box required the officers were not they recognize importance be of disregard them. prosecution the arrestee when plain 56, 430, 23. items are view of 70 94 L.Ed. involved 339 U.S. S.Ct. 653 premises (1950). enter the ** * to make the arrest. 145, 1098, L.Ed. 331 U.S. 67 S.Ct. 91 (140 U.S.App.D.C. Thweat 123- (1947). 1399 124, 1229-1230) explicitly 433 F.2d at plain g., 23, 42, California, items E. Ker v. seizure of U.S. decided 374 1623, (1963) ; governed 83 10 view is not restrictions S.Ct. L.Ed.2d 726 scope 217, placed in- 235- of a search Abel United 362 U.S. ; 683, 239, cident to an arrest Chimel v. Cali- S.Ct. L.Ed.2d 668 cf., Ohio, 91, fornia, 2034, Beck v. S.Ct. 379 U.S. 85 S. U.S. Accord, (1964). Ct. Dorman v. L.Ed.2d 142 L.Ed.2d U.S.App.D.C.; upheld warrantless, Court (April 15, 1970). also, F.2d 385 See ADI an incident to arrest search of entire four Pre-arraignment apartment. approved Pro- room Rabinomtz Model Code cedure, Seizure, the intensive search of a one room busi- Part II. Search and §§ office, including 1.03(1), 3.01(1), (2) (Tent.Draft desk, ness safe and SS SS again cabinets, ar- file incident No. guns rest. found the box As to two shelf, removing it from the think we

85 retroactively.28 Supreme think the We in Chimel v. California.26 fined implied opinion Supreme in it- said: Court the Chimel Court Chimel creating knowingly self it was ample justification, there- There new constitutional for search standard fore, arrestee’s for a search seizure, ap- had one that not been im- person area “within and the plied (at consistently applied) least construing mediate control” — Supreme Court The Court before. phrase the area within to mean time, “It is for the we said reasons have might gain possession aof which he stated, hold Rabinowitz [the weapon evidence. destructible facts, their own eases] justifica- comparable There principles insofar stand for searching tion, however, routinely for are inconsistent with those that we have in which room other than longer today, endorsed are no matter, or, for that for arrest occurs — be followed.”29 ‍‌​​‌​​‌​‌‌‌‌​‌​​‌​‌‌‌​​‌‌​​‌​​‌​​‌‌​​‌‌​​‌‌​​​​​‍searching through draw- all the desk considering the Chimel whether ers or other closed areas concealed retroactively applied should standard searches, room itself. Such appellant’s if Fourth determine recognized excep- the absence of well rights violated this Amendment tions, may only under the au- be made case, analysis we follow three factor thority aof search warrant.27 Judge set for forth MacKinnon Assuming that the search in court v. Woodard United States.30 $5,000.00 bedroom and the seizure of the underlying purpose from the not meet did 1. Whether standard, question ap the Chimel then served the new would be standard applied plying retroactively prior becomes cases. whether Chimel is to be 752, 2034, 244, 26. 395 U.S. 89 S.Ct. 23 at L.Ed.2d Desist United 392 U.S. v. (1969). 248; 248, 1030, 685 22 L.Ed.2d 89 S.Ct. Jersey, 719, at v. New 384 U.S. Johnson 763, Id. at 89 S.Ct. at 2040. 882; 734, 1772, 16 L.Ed.2d 86 S.Ct. Supreme 28. The Court has thus far ex- 618, Walker, at U.S. Linkletter v. 381 pressly deciding refrained from 601, issue. 1731, 629-636, 14 L.Ed.2d 85 S.Ct. Louisiana, 30, See v. Vale 399 U.S. 90 S. retroactivity to which denied decisions 1969, 409; Shipley 26 substantially Ct. L.Ed.2d v. already overruling cases 818, California, 2053, 395 U.S. 89 S.Ct. undermined, bur make it clear that the ; 23 L.Ed.2d Von 732 Cleef asserting has been that a decision den Jersey, 814, 2051, New 395 U.S. 89 S.Ct. retro- and hence raises no foreshadowed (1969). 23 L.Ed.2d 728 activity heavy, at where an issue is least discredited, Supreme uncontradicted, if 768, Ap- at 395 89 S.Ct. at 2042. U.S. opinion Court exists. pellant argues Chimel not in States ex Allison New Jer- United rel. new establish a but rather standard mere- sey, 332, (3rd 20 Cir. 341 n. ly previous law, thal. clarified 1969). holding clearly Chimel been fore- prior U.S.App.D.C. 37, 4, shadowed agree. decisions. We cannot 30. 139 429 F.2d 716 recently (June 1970). This court has stated that three are These factors “important- Supreme developed by Court in Chimel those which ly scope Supreme provide restricted the search of framework Court premises retroactivity considering potential that- could be made without a ground procedure. warrant on it was in- new rules of criminal See * * 249, 244, cident to arrest Dorman v. Desist v. U.S. United 394 ; U.S.App.D.C. 1030, (1969) ; 140 S.Ct. 22 248 L.Ed.2d ; (April 15, 1970, Denno, 293, 297, F.2d Stovall v. 388 U.S. banc). en See also United States v. For S.Ct. 18 L.Ed.2d Thweatt, U.S.App.D.C. 120, comprehensive discussion the Su- preme determining n. at 1229 Court’s standards recognizing question scholarly deciding retroactivity questions, but not see the retroactivity. Furthermore, opinion Judge of Chimel’s of the late Stahl recently Jersey, as served, Third Circuit Allison has ob States ex rel. v. New (3rd F.2d 332 Cir. fact, rule is In that a new for truth. indicate aid the search Recent cases privileges if retrospectively many are applied these properly where mоst cases reliability prevent the operate of the full the to to enhance asserted tends determining being proc finding known. Tested truth from or truth * * standard, purpose rule purpose of the Chimel of the main ess. The applica police require quite retroactive clearly to deter does not rule is 33 conducting overly with broad searches tion.” authority The a warrant. out likely ap effect of retroactive 2. the retro- critical first factor31 orderly plication on the administration against activity analysis points thus justice. Largely of this on the basis In application of Chimel. retroactive 293, factor, Denno, Stovall U.S. v. 388 States,32 Justice Stew Desist v. United (1967) 1967, 1199 87 S.Ct. 18 L.Ed.2d relying Court, on Linkletter art retroactivity v. refused to States United 1731, Walker, 618, 85 v. 381 S.Ct. U.S. Wade, 1926, 218, 18 388 87 U.S. S.Ct. (1965), “in con 14 stated: L.Ed.2d 601 (1967) 1149 L.Ed.2d v. Cali Gilbert ac which had trast decisions with 263, 1951, fornia, 18 388 87 U.S. S.Ct. effect, ‘there is corded retroactive though (1967), Wade L.Ed.2d 1178 even unreliability or coercion likelihood dealing with Gilbert were decisions case’; present in a search seizure affecting standards truth determin ‘proce exclusionary rule is but a ing process itself, e., reliability i. bearing weapon has no dural eye-witness In identifications.34 guilt,’ trial and ‘the fairness making case bar the effect of Chimel ” And we said not under attack.’ fully inspire col retroactive would be to Woodard, decisions indicate “These proceedings challenging lateral thousands [against purpose use of the rule of cases in whiсh in evidence was seized given testimony an at trial of accused’s arrest,35 appalling prospect cident suppress on a seized evidence] motion the administration of the overbur * * * is not one violation dened United States Courts. do Nor preju always which is to be considered should, we think that we purpose dicial since the constitu grant urges, retroactivity by ap limited privileges against tional self-incrimina plying Chimel to those cases still subject tion and not to unreasonable searches is to direct review at time 244, credibility 31. v. Desist United 394 U.S. witness’ made retroac- 249, 1030, application imperative cases, 89 22 S.Ct. L.Ed.2d 248 tive in these ; (1969) integrity ex v. States rel. Allison in order to assure the jersey, 332, (3rd determining process. New truth 418 F.2d 345 Cir. 1969) . 34. The Court if noted the Wade/Gil- 244, retroactively 250, 1030, applied, bert 394 U.S. 89 S.Ct. rules 1034 were to be very least, processing At the of cur- rent criminal calendars would be dis- U.S.App. 33. Woodard v. United 139 rupted hearings while were conducted 37, 41, 716, (June 4, 720 D.C. 1970) taint, any, to determine if in identifica- Russell, contrast, Roberts v. . evidence, tion and whether in event 1921, 293, 392 U.S. 88 S.Ct. 20 admission the evidence was harm- (1968) Berger 1100 v. L.Ed.2d Doubtless, too, inquiry less error. California, 540, 314, 393 89 U.S. S.Ct. handicapped by would be the unavail- (1969) 21 L.Ed.2d 508 held retroactive ability of witnesses and dim memories. safeguards right to a defendant’s 300, 388 U.S. at 87 S.Ct. at 1971. confront cross-examine witnesses up which had been announced Bruton v. Available statistics indicate that present time, 123, overwhelming 391 U.S. 88 S.Ct. ma jority (1968) 1620, 20 L.Ed.2d and Barber searches 476 have been con Page, 719, 1318, arrest, 88 20 ducted v. U.S. S.Ct. incident respectively. benefit of L.Ed.2d 255 a search warrant. See ALI op- interrelationship Pre-arraignment Model obvious between the Code of Pro portunity cedure, Introductory Memorandum, (tent, cross-examine witnesses ability judge 3, 1970). draft of the trier of fact no. approach A decision. similar that Linkletter is true its decision. 1731, 618, adopted in Walker, Tehan v. States [United S.Ct. 381 U.S. 406, granted Shott, lim S.Ct. such ex 382 U.S. rel.] [86 14 L.Ed.2d 453], 459, respect Mapp retroactivity Ohio 15 L.Ed.2d ited excluding prospectivity il rule of Griffin v. Cali- requirement apply fornia, to state legally [85 U.S. S.Ct. seized Nevertheless, that such it is clear v. New 14 L.Ed.2d Johnson 106]. trials. Jersey, compelled in instant is not S.Ct. a result U.S. contrary, Supreme however, 882, L.Ed.2d we abandoned case. On away moving apparently approach been Linkletter has taken Court employment limited retro- Tehan that “there are from the and concluded requiring activity jurisprudential formula ob- toward a or constitutional complete adoption prospectivity or of a full stacles” to the different either point.37 application. cut-off retroactive States, U.S. In 394 Desist v. United instant therefore conclude We 252, 1030, 244, 22 L.Ed.2d 248 89 S.Ct. directly governed by In Desist. case involving new a also a case there, “Because words Court rule, ex- Fourth Amendment the Court purpose of over- the deterrent [Chimel] plained it had in those cases where nonretroactivity, whelmingly supports retroactivity explicitly adopted limited a result even if rela- we would reach that already retroactivity approach, such had tively aside few convictions would set implemented discussion application.”38 by its retroactive prior concerning rules cases new by police, possible reliance 3. The gave question. prospectivity full Desist prosecutors, upon and courts the ante- against non-trespassory to the rule Chimel ex- standard law. cedent eavesdropping announced in Katz v. plicitly a line cases overruled 507, States, 347, United 88 389 U.S. S.Ct. had authorized much boundaries broader reaching (1967). In 19 L.Ed.2d 576 incident to a law- within which search result, the Court recounted that out, g., could e. ful arrest be carried point in Link- Petitioners out Harris, Rabinowitz, progeny.39 involving letter, other case Periodically Supreme af- Court had retroactivity of a Fourth Amend- degree in one or another these firmed Mapp decision, ment held Court cases, of- enforcement landmark and law applicable every pending ease still necessarily upon relied ficials on direct review on date of 36, (10th 1969) ; 643, 1684, 416 F.2d 41 Cir. 36. 367 U.S. 81 S.Ct. 6 L.Ed. cf., Perini, 804, (1961). v. 805 Colosimo 2d 1081 (6th 1969), apparently applying the Cir. 252, 37. at S.Ct. 394 U.S. 89 at 1035. foreshadowing (see principle su note 29 251-252, pra) Id. at 89 S.Ct. Sev context of vehicle search. recognize eral other circuits have also reached the a number of state We conclusion Chimel should be accord courts either assumed decidеd prospective only. application retroactivity ed Wil the limited full Chimel. 159, State, 134, liams 418 v. United F.2d 162 See Fresneda P.2d v. 458 143 (9th 1969), granted, (Alaska 1969) ; State, Ashby Cir. cert. 397 U.S. v. 228 So. 986, 1120, ; 400, (Fla.App.1969) 90 25 L.Ed.2d 394 S.Ct. 2d v. 408 State ; Lyon (1970) Rhodes, 729, 259, F. v. 416 SO 460 P.2d 260 N.M. (5th 1969), denied, 91, (1969) ; Cullison, 2d 93 Cir. cert. State 173 N.W.2d v. 597, 1023, 533, (Iowa 1970) (dictum). Cf., 396 24 L.Ed.2d U.S. 90 S.Ct. 540 ; Bennett, (1970) People Mann, 107, 516 United States v. v. Misc.2d 305 61 1113, (2d 1969), (1969). Contra, 1114 Cir. cert. v. N.Y.S.2d Scott Haywood denied, State, 505, Md.App. 256 A.2d 384 949, 113, ; People Edwards, (1969) Cal.Rptr. ‍‌​​‌​​‌​‌‌‌‌​‌​​‌​‌‌‌​​‌‌​​‌​​‌​​‌‌​​‌‌​​‌‌​​​​​‍24 L. U.S. 90 S.Ct. ; accord, Ed.2d 458 P.2d 713 F.Supp. 467, Frazier, States v. (D.Md.1969) ; Whiteley Meacham, cf., supra. note 25 39. See aiding and abet- boundary Harris’ conviction for involved recognized limits then robbers, ting evidence there must be arrest. a lawful incident in a search knowledge, finding arresting defend- police officers e., knowingly i. “that evidence justi- juvenile were ant Henson holdup.”40 abetted aided relying trial court here. in so fied however, our opinion, there was suffi- admit authorized therefore jury cient evidence this case money stolen $5,000.00 in seized finding beyond have made such a the trial of payroll into evidence doubt. reasonable Harris. $5,000.00 making determination, is that The truth it must ignored three stolen from that on this issue we robbers, ap- light abetted aided and must armed view the Harris, perver- pellant government, “giv- and it would be most favorable impose retroactively a justice play right jury full sion of upon credibility, weigh seizure new of search and determine standard the evidence ease, police justifiable fact, in when the and draw inferences of ” * * * upon Curley set States, relied the standard Su- v. United 81 preme 389, U.S.App.D.C. 392, made the Court at the time 229, F.2d 160 232 arrest, (1947). It is Thus, search seizure. suffi- sufficiency and the test justice cient for the administration is evidence not whether a reasonable applied pro- possible, that the Chimel doubt standard but rather whether spectively judge police finding conduct to of no reasonable doubt was possible.41 Viewing search seizure. and the evidence in this together ease as a whole with the reason- Therefore we hold that the standards able inferences which could be drawn set out Chimel v. are not to California therefrom, we jury conclude that retroactively applied to determine could guilty find the element of knowl- appellant whether Harris’ Fourth edge, together with the other elements rights Amendment were violated in this necessary guilt, beyond a reasonable pre-Chimel case. Under standard doubt. appellant’s we find that the search of apartment was a “search incident to a clarify To outset, matters at we arrest,” concept lawful as that was then note that the fact that the evidence in understood. We therefore hold that wholly case is circumstantial is of pursuant seized to that search significance question to the of wheth- properly admitted at trial. er present sufficient evidence support finding guilty knowledge. Sufficiency III. the Evidence Indeed, Judge (now Justice) Black- recently mun agree pointed out, has appellant’s “frequent- We ly, guilty knowledge argument incapable and the our views of dissent is of di- colleague proof rect uphold established, and is in order if at all Bailey States, participated said in As we v. United defendant assisted or U.S.App.D.C. 95, offense, 135 commission of that 1113 qua, Garguilo, (2d aiding “[a] sine non of States v. 310 F.2d 249 Cir. * * * 1962). abetting guilty participation recognized by the accusedand 41. To sustain conviction the evidence States, the court in White v. United 366 need be “such evidence that reasonable (10th 1966) “aiding F.2d Cir. persons guilt beyond could find a reason- abetting implies guilty knowledge.” requirement able doubt. not a The other essential elements a con- compel only the evidence finding abetting (1) viction for are capable persuade oí sufficient the fact that an offense was committed jury guilt reach verdict of by someone, White requisite standard.” Crawford v. Unit- supra, Provenzano, United States U.S.App.D.C. 156, 158, ed (3rd 1964), F.2d Cir. F.2d up paycheck ployee pick his Anderson who failed to evidence.” circumstantial (8th robbery after occurred. Cir. very per- three, collectively, The first ra- purported ap- suasively support is the Equally invalid the inference of the individual rob- pellant provided since none to the tionale that assistance proof in themselves tended had the items fact that robbers bers. The knowledge, guilty car, gun, apart- the combination appellant’s show use of proved day facts practically of all the circumstаntial de- ment on the same equally appellant insufficient basis was an mands conclusion that vol- jury knowl- untarily infer provided could the use of these items. edge. utilizing here circumstances facts of the robbers actions together, suf- proved, immediately when appellant’s apartment viewed jury conclude not ficient to enable further evidenced occurred provided assistance would be welcome confidence robbers, legitimate knew of but also that he and not And the disturbed. purpose This gun so.42 inference that loaned necessarily require jury to does not slightly tends at least robbers impermissible on an draw an inference appel- the further inference that inference, or, gun the words of the dis- purpose for lant knew the which the sent, assuming first from the “involve just A man not sur- be used. does proven principals possession of his render to his friends gun car volun- that Harris gun, deadly taking weapon, tarily principals, loaned them to the in- more than a in its casual interest assumption the further that knew employment. tended going to be used rob to significance four, item true payroll place employment.” at his appellant’s employer the fact it was inference, “The rule is not that an no robbed, may been obscured who was have reasonable, rejected matter how is to be by attempt make too Government’s turn, upon depends if it in another rea- signifi- much attach real out of it. To inference; rather, question sonable necessary point is not cance to this it merely evidence, is whether the total in- only argue, does, that as the Government cluding inferences, put reasonable when very appellant number and a limited together jury is sufficient a warrant possibly known have others could guilty to conclude that defendant is be- took and route the handlers yond a reasonable doubt.”43 handling payroll. other mechanics of collectively too far. When viewed the facts This the inference stretches argue against employer explana- appellant’s here was innocent fact own gun used; importance One, proper appellant’s tion: its was achieves robbed two, used; three, appel- appellant’s fact car was connection with the gun, appellant’s apartment, and his car was used lant’s his meeting loot; appellant place If and to conceal were used the robbers. actually four, employer participate appellant’s himself own pick ap- hold-up, place to payroll, who was robbed of what better which pellant, very least, em- than his own for his friends to rob ployer, premises premises com- with he was known would on that whose date; pletely five, appellant familiar? find this was the em- We Cf., Hutul, mony argue 42. United States that each insuf- (7th 1969), support How- where ficient the verdicts. Cir. ever, presented the evidence concern- court said: overlaps the various accidents not, briefs, Defendants in their do look cannot be viewed in vacuum. whole, the evidence as a or Government, light most DeVore favorable to (9th but rather isolate various bits testi- Cir. correctly points with the the evidence highly significant in connection guilt against possibility inac-

legitimate drawn inference gun, curacy ambiguous his his appellant indeed loan inference. both, jury experience friends. must use its car, apartment, to his and his weighing people and events in provides basis a substantial probabilities. appellant jury knew If the is convinced inference further beyond he made re- intentions when a reasonable doubt we can of the robbers’ quire property We no to them. more.46 available combination of these it is the stress that appellant pick Finally, the failure of prob- points which circumstances robbery, up his check after knowledge. guilty ability appellant’s together considered with the rest of the all, probability is, And it evidence, infer- also tends to guilt jury appellant’s is with which knowledge. Further, ence even whether the evi- concerned.44 This so colleague’s dissenting theory, under our guilt does tends to establish dence which personal this fact would seem to abe indirectly, proof of circumstantial so appellant independent signifi- act of facts, directly procf. testimonial (albeit, оmission) cance an act of Supreme As the Court said in Holland v. directly guil- appellant’s tended to show United States:45 ty knowledge and connection with the * * * Circumstantial evidence Surely jury crime. could some draw intrinsically from tes- guilty knowledge different inference relative to Admittedly, timonial cir- evidence. the fact alone of all may in employees cumstantial some in his section failed to point wholly pick up re- cases to a incorrect appellant, his check. This act of equally coupled proof sult. Yet this is of tes- appellant’s true with the instances, gun, apartment, timonial evidence. both and car were used jury weigh asked to the chances robbers could form the basis for the Every jury is, necessity, fingerprints verdict er’s were found in the car. probability. Cooper’s determination of In a civil It could be said to be car or case, jury virtually for standard can be the other fellows’. This was probable said to be whether all of it is more the evidence the Government had prove jjarticipation than not that to defendant is liable. the element of or case, standard, robbery. In Additionally, a criminal assistance in the stated probability Cooper in terms of the individ- fact that had asked a cousin juror’s point view, falsely ual in is North whether it Carolina to corroborate probable alibi, attempt is so that is was defendant introduced in to guilty prove guilty knowledge. it would be the elemеnt unreasonable to believe otherwise. The court held that since there no was proof Cooper was not in North Car 127, 137, 45. 348 U.S. 75 S.Ct. robbery, olina time of the but L.Ed. only testify that he asked his cousin to (emphasis added). Cooper falsely 46. Id. there, Unit that she had seen him U.S.App.D.C. 343, request ed cousin, F. “standing to the alone * * * by 2d 39 explained cited the dissent aas is terrorized in stronger aiding abetting case for guilt.” nocence as well as a sense of robbery Harris, Thus, than which was nonethe 218 F.2d at 41. is clear that insufficiency evidence, respect less reversed for with to the element of assistance actually is in participation our crime, view a much weaker proof in the in Cooper substantially case. was less than that respect Cooper, in Harris. And with circumstantial evidence the ele against guilty appellant knowledge, request ment consisted of the fact falsely engaged buying that he alibi was corroborated was akin in an auto unexplained flight mobile from another defendant thus was unre whose registered name the liable guilty knowledge. car as evidence of was and who criminal intent or was identified as the actual robber. See note 48 and ac The companying text, automobile was identified the one used infra. robbery and, quite expectedly, Coop in the ciency appellant cul- of the evidence a ver- jury conclude crime,47 totality guilty, fact dict of of the circum- pably The involved appellant’s explanations be- stantial in- this case when that other collectively opposing per- possible, and that viewed was sufficient havior were jury appellant’s mit to infer is not de- both inferences could be drawn jury guilty to con- assistance to the robbers and his “It is for the terminative. knowledge purpose. opposing possibilities of their sider these appropriate inferences.” An- draw the Judgment Inconsistent supra, IV. derson Jury The Verdict With at 532-538. charged appel indictment pick up pay- The Appellant’s failure to his robbery count action; under wholly lant armed private with

check was a one, under two. count participation had not been accused instructions, jury, proper found crime, questioned under or sus- even one, guilty appellant under count armed pected. fairly assume that all We can robbery, on count and rendered verdict employees section knew of the two, robbery. judgment entered robbery, Yet the paid by since check appellant convicted of records not in the normal fashion cash. robbery, robbery, only armed and assault with pick up Yet failed to his three). dangerous weapon (count check. It would be unreasonable speculate only appellant, of all Appellant under was sentenced Sec- employees, was unaware of the Act tion of the Youth Corrections checks would be distributed. While years prison, a term within seven flight may from an accusation of crime provided the maximum limit for either reaction, walking be a normal human off robbery or assault with a dan- armed inquiry leaving behind a gerous weapon. pay week’s certainly is not so.48 judgment entered in- is the Not verdict, ap- jury’s summary, that, but under the consistent with we believe right reviewing pellant may prejudiced relevant the suffi- test opinion (dissenting rea- 47. The dissent concludes: unexplained flight might something There evidence of son that Gov- point cumulating an unreliable indication ernment’s evi- considered flight, guilt points one is accused dence if the five were weak evi- reaction, participation guilty crime, dence of a is a normal human knowl- edge, They go As one or innocent. do whether far. just recently ingredient court: stated have no them which fairly prove knowledgeable Flight par- received sub- tends to instructions have years, ticipation, disagree in recent chief- and I stantial criticism with the ly great the risk that an in- Government’s thesis that this fatal omis- because is respond similarly sion is man would cured that it oc- nocent nothing curs five times. Five times one when a brush with the law produces nothing. is threatened. Vereen, U.S.App. United States Admittedly every piece of circumstantial 34, at 429 F.2d D.C. doughnut, evidence is like a it has a hole also, See Austin it, e., susceptible i. it is to an in- U.S.App.D.C. 259, 261, explanation. doughnuts nocent If five said, where we put scales, weight are on the thе total person’s flight we deal with a nothing; doughnuts the holes if is from the scene of or of a an accusation weighed, appreciable. are the sum total is crime, extraordinarily we deal with an jury eye doughnut The had its complex action, potentially prompted by and not on the hole. variety guilt of motives other than disagree 48. Thus we with the conclusion of the actual crime. expressed text, of the dissent that in the circumstances For the reasons in the appellant’s case, appellant’s pick up pay of this action in fail- failure his ing pick up pay entirely his check “is cheek is an different kind of ac- incriminating unexplained flight.” unexplained fleeing. tion than an prison, if ways, entirely in other release from Thus Harris’ conviction rests patent inconsistency upon between verdict circumstantial The evidence. basic judgment deficiency government’s left uncorrected. I find in the proof that it fails to include Therefore, under U.S.C. § factual element which it judgment case to correct the is remanded knowingly can be concluded that Harris con- to reflect that Harris was participated sought robbery in the robbery victed of armed and assault by his actions to make it succeed. dangerous weapon, which convictions requisite knowledge can of course be are proved by evidence, circumstantial but Affirmed. proof to do so there must be of some fact fairly prоve knowledge tends to Judge (dissent- MacKINNON, Circuit with which the acts were done. ing). in this area of the inferences conclu- goes only to My this case fairly dissent sions reasonably that can the evi- panel that foregoing drawn from the decision testimonial ver- part company gov- dence is sufficient facts that I with the points I panel the other opinion. dict. general ernment and On me To agreement. panel opinion relies, as it must be- adequate cause of the government absence con- thesis of It is the necting evidence, upon many abetting too remote aiding and conviction upon inferences many intervening which turn rest too robbery Print- the Merkle following inferences. so do- ing supported plant is give weight it adequate fails to circumstances: of facts and collocation the fact that adequate there are other gun,- testimony (1) which explanations they than the ones arrive robbery which used for the conclusions advance as purchased the victim wounded doing basis of decision. In so Harris; adequately fail to consider and exclude sale, Ex- (2) the bill of Government possibilities. other reasonable I do not clearly #11, established hibit negate contend every must oth- owner Harris was the er guilt hypothesis except reasonable that of away get Chevy which was II Nova I do contend that the convic- men, tes- and the three for the vehicle rest, tion cannot to the extent that timony found near it was upon pure rests here, speculation and rob- apartment an hour of the within conjecture. engine warm; bery with its government powerless in is not Henson, testimony (3) who was knowledge Guilty and ac- these cases. robbers, was one of the identified as participation by tive one who aids and shortly arrested in Harris’ may be abets the proved of a crime commission robbery, three that the many ways. approxi- guns used accused could False statements there; mately $5,000 recovered necessary guilty proof furnish knowledge, testimony was an F. Fox v. United employee Press date Merkle of 1967); proof (9th or Cir. 2d only employees, and that the offense alleged accessory knew of that ex-employees, possibly or could have attempt principal’s criminal record and delivered; payroll was known how up, ed United to cover Costello v. 1958); (8th Cir. 255 F.2d alleged by proof or must that Harris was that the aider only pick up employee his he did not have known of the crime because who Logs- large money, following paycheck theft of the shared such sums of (6th payroll. 12,14 don United v. gun alleged 1958); re or that the aider car his borrowed the without Cir. illegal knowledge and, knew, proceeds part if im- more ceived by portantly knowing his use crime or otherwise indicated they put Also, he was the de actions that familiar with intended to them to. crime, King may tails of the have had in the robbers an interest (10th 1968); may previously purchased car and F.2d 290-291 Cir. have gun. being principals or he received that funds without As for the arrange usual formalities made an arrested hour after an an the crime at transaction, apartment nothing Harris, ment conceal the leased to Daileda, (D. F.Supp. any implication States with it fact carries Pa.1964). knowingly actively par- above, ticipated in the crime. As stated proof of cases hold these All of may living some of them have been with knowledge element guilty is an essential Harris. The fact that the came robbers abetting. aiding and to a conviction probative there the crime is not Hand, it must Learned In the words any respect of the intent with which “pur- have proved that the accused any Harris committed act. What is Unit- posive toward crime. attitude” significance some adverse to the Govern- Peoni, ed States ment’s contention is that not Harris was (2d Cir. at his an hour after crime facts five examination of the A casual completely record trial devoid is sufficient the Government cited any evidence as to where Harris was them contains that none of demonstrate work, He was not time. since fairly any ingredients of evidence according punch- time to his card he had prove the accused tends to (maybe actually).1 ed out at 4:30 4:35 knowledge participated crime. brings This then tous the fourth fact by the of acts None of the five facts arе government upon attempts which the Rather, appellant that aided the crime. build some inference out the fact facts, stationary chiefly are five facts Press, employment at the Merkle operative not facts connected with respect woefully but the record in crime. deficient, panel opinion and the now recognizes completely as The record is silent some extent. gun and sold to attempted ear that were how Government to establish that possession came the accused into the employee of Merkle Press would absolutely principals. There is pay know the time means off used to voluntarily offering But, accused employees. Merkle’s if that he testimony them he did loaned such into evidence the first any suspect what question knew or had reason to improper and answer prin- put use would be according stricken rec- to the cipals. sup- just as reasonable ord the Attorney States pose one or more the robbers wait ques- for an answer to his second living with Harris and that cross-examination, tion.2 Further, p. 94, infra, being as you See to time object clock Do Court: slow. question? minutes Yes, Mr. Docter: sir. testimony you The actual follows: The Court: far so know. anyone Would your question again. Q em- other than the Put ployees Press, By at Merkle would Finkelstein: Mr. any Quinlan, your reason to knowledge, know about Q Mr. payroll person which route is met? other оther than an employee A No. Merkle Press know of the please, Docter: Your Mr. Honor I means used is met specify Friday every think he should he whether at Merkle Press? says department knows. He no. What his In which was Thomas employed? basis? Harris Shipping Department employees were re- was somewhat answer this broad day by paid “distributed proportions checks reasonable to more duced * * * quarter approximately a admitted witness the same twenty after or after four.” had observed “only employees who those * * * in at punched time he 8:01 route card showed pattern of the it [the time bringing it A.M. out at P.M. The getting money and 4:30 and the of * * * apparently clock five minutes slow employees] was paying the over and (Tr. 113) may punched so Harris have pattern.” was There know would the time out at 4:35 Whether the P.M. had observed Harris no evidence that Department Shipping Shipping the distribution of pattern. in the the He worked similarly behind there cheeks was five minutes Department precise duties but his know; the time but actual we do not he worked were in and the area precise lack to how precisely was evidence as Neither not described. Shipping Department employees were any in his that Harris there paid by know notified would be check or employment opportunity to had the proximity place pay- toas particularly the payroll pattern, (where ment day to the time the rob- clock Harris one that was on used punched out), bery. and as ex- to whether Harris also admitted was paid by was pattern, that he employees might but notified could know government’s he check or in the was he area where should witness testified fact, learned of such all tend to did not know close relatives whether ‍‌​​‌​​‌​‌‌‌‌​‌​​‌​‌‌‌​​‌‌​​‌​​‌​​‌‌​​‌‌​​‌‌​​​​​‍destroy employees employees hus- and like effectiveness of this former evi- purpose. dence know serve band and wife would about Government’s up Obviously, they might, pick pattern. that Harris did not his paycheck large wrongful, inherently not very group was this could be a as it going robbery was not related to payroll pattern same had been way years prior prior it carried infer- since over ten reasonable knowledgeable very robbery. participation ence of to the There was thus a robbery. picked large group people equal up If who had an Harris (if proved his check it opportunity with he had not have Harris such failing opportunity) pattern. robbery did not aid the So to know pick up nothing contrary it does not force a there is prove the fourth fact best, only guilty At cir- participation conclusion. was with knowl- edge cumstance not part and is Harris. crime after flight incriminating unexplained The fifth fact is Har- and final jointly awith robber which has been Shipping ris was one sup- held to be insufficient evidence pick up Department did not who port finding knowledge robbery. Ordinarily paycheck aiding abetting.3 suppose I employees other government contends the incident check by cash, day paid particular but on this guilt I shows consciousness of sub- cash, robbery because of the mit that conclusion To is too remote. paid slightly later Ac- were cording check. the extent that the circumstance testimony to the respect arguably anything indicates committed at about and the P.M. U.S.App. Bailey employed Shipping A He ; (1969) Department. D.C. U.S.App. transcript see Scott thus does for a 232 F.2d 362 D.C. statement brief that: Government served employees where evidence that accused case No one other of Merkle than prove aid as lookout insufficient reason to Press would have know the abetting. system employees pay used to pay the routes traveled to deliver departments. (Tr. 105- various * * * crime, it application with the a much more association extreme to of the explained by points fact equally errors he out be there. could by might upset have been that Harris point IWhen out that the circumstan- payroll seeing people rob he knew govern- upon by tial evidence relied by (if them), or the fact that he saw “ingredient” tending fairly ment had no they were notice that not receive prove Harris of the offense not pay by But going he was cheek. charged, nothing I mean that there is apartment later when an hour at his may the facts that Harris owned and this cir- principals arrested were gun the car or the or have leased ignored. with- So cannot be cumstance plant or worked at testimony precise more out pick up failed to his check the rob- proba- cannot said to be circumstance bery probative any that act com- proved that that must be tive of the fact mitted Harris. It is all evidence that participated knowingly Harris rely upon must too much inference robbery. furnish a base for a conclusion that any in facts have five None these Harris acted to assist robbers gredient implicit in their circumstances knowing going that were to commit prove fairly Harris tends any If crime. there had been evidence “purposive to associate attitude” had a any in connection with one of these five crime, participate himself with fairly facts probative something bring about he wished knowledgeable participation I it succ action to make and seek differently. would feel Such facts could would reach such conclusion eed.5 To fingerprints have been Harris’ proven assuming from the first involve plate removed, license had principals Harris’ car verbal denial him that he knew the voluntarily gun, loaned that Harris robbers, a false statement car or principals the further them to gun any his, was not such similar go assumption knew that he testimony. need to be payroll at his used rob evidence, only direct circumstantial evi- record, employment. place On itself, relying dence that in or of findings conjecture, pure would be such completely inference, upon on inference are too conclusions as to intent such could a direct inference proven are not facts which remote knowledgeable participation. Failing analy probative of intent.6 An excellent my opinion such test it is evi- evidentiary of cir of the limitations sis required dence does not meet the stand- in Part cumstantial evidence is forth set persuasion. ard of Judge in United I of dissent Robb’s Failing standard, to meet such since Johnson, U.S.App.D.C. v. States ingredi- the five circumstances lack (1970). My own views prove participated ents that Harris ap coincide with his statement guilty knowledge, with plicable application form a law but not with its whol- ly inadequate upon facts that case. This case base which to rest Peoni, supra, robbery. 4. United v. 100 F.2d States There likewise own- getaway at 402. ed the ear and was a friend of one of the In addition he had robbers. Nye States, & Nissen 336 U. asked his cousin in North Carolina to cor- (1949) ; S. 69 S.Ct. 93 L.Ed. roborate a false alibi for him. The court Peterson 405 F.2d 102 might ques- such held raise a (8th 1968) ; Cir. White v. United suspicion tion and create is not (10th Cir. enough. obviously There evi- more Cooper U.S.App. upon dence there than here which to base participation guilty knowledge. D.C. 218 F.2d 39 reversed stronger aiding abetting case tor abetting.7 aiding conviction in its much admits as Government The brief, FEDERAL TRADE COMMISSION five e., these each of i. that when separately is circumstances considered Ralph BROWNING, Vice Executive L. (fragmented), they are inconclusive Lehigh President of Portland Ce- they argue taken guilt, that when but Appellant. Company, ment adequate to they are aas whole No. 23381. agree evi- that the We

the conviction. Appeals, United States Court whole. be considered as dence must District Columbia Circuit. something might Gov- There 20, 1970. Argued April cumulating the evi- point of ernment’s weak evi- points were five dence if the Decided Oct. guilty knowl- participation with dence of They go edge, that far. do not ingredient which just them knowledgeable par- fairly prove tends to disagree Gov- ticipation, I with omission this fatal thesis that ernment’s five fact that it occurs cured is nothing produces Five times times. nothing. circumstances Under such gets

government’s argument down passive

contending the number a con- warrants

circumstances involved rely e., it can guilt, clusion upon i. get probabilities numerical How- doubt hurdle.

over the reasonable

ever, nu- verdict on to so base it im- probabilities base

merical

permissibly pure What chance. produced circum- from the should reasonably probability some

stances is fairly based some par- knowledgeable

a fair inference of

ticipation can I view be adduced. As do not

record the factual circumstances point knowledgeable par-

unerringly

ticipation by a conclusion Harris and do can be reached

impermissible conjec- speculation and

ture. Under such circumstances my opinion impossible it would be guilt

for a reasonable mind conclude beyond So, I would reasonable ‍‌​​‌​​‌​‌‌‌‌​‌​​‌​‌‌‌​​‌‌​​‌​​‌​​‌‌​​‌‌​​‌‌​​​​​‍doubt. reverse and remand with directions judgment

enter acquittal

motion of the defendant. anything,

7. When the Government was at oral as a base for asked 4. But argument transcript which of cir inade the five shows that No. any ingredient quate purpose. pages cumstances had ly fair such See 93- prove participation 95, supra. guil tended to ty knowledge, they pointed only to No.

Case Details

Case Name: United States v. Thomas D. Harris

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

Date Published: Sep 22, 1970

Citation: 435 F.2d 74

Docket Number: 22742_1

Court Abbreviation: D.C. Cir.