*1 Policy hearings to which the renewal applicable re- deemed Statement judgment. court’s flect this Judge.
MacKINNON, Circuit foregoing opinion. I concur recognize and need I desire While obtaining stability for reasonable present licenses, statute newal Corp. Radio Ashbacker as construed F.C.C., 326 U.S. I do not consider L.Ed. 108 administratively possible provide program operating furnish licensees who meeting “substantially attuned to service area and interests the needs ** -x- deficiencies serious [without] * * * preferred new- will be over application renewal his comer and granted.” policy Such would ef- will be applicant fectively prevent a newcomer being of his heard the merits application, superlative how no matter Skelly Wright, Judge, J. Circuit dis- also, qualifications. in ef- opinion. sented and filed fect, a standard of substantial substitute MacKinnon, Judge, Circuit dissented possible best service service opinion. and filed negate effectively public hearing requirements of the statute
interpreted If Court. desired, change my opinion, such accomplished amendment must be the statute.
UNITED STATES America ROBINSON, Jr., Appellant. Willie
No. 23734. Appeals, United States Court District Columbia Circuit. Argued En Banc Feb.
Decided June
ON EN BANC REHEARING BAZELON, Judge, Before and Chief WRIGHT, McGOWAN, TAMM, LEV- ENTHAL, MacKINNON, ROBINSON, WILKEY, Judges, sit- ROBB Circuit ting en banc.
McGOWAN, Judge: Circuit appeal jury
This from a conviction (26 federal narcotics U.S.C. offenses § 4704(a) 174) ques- and 21 U.S.C. raises § Amendment, tions under the Fourth as they important, difficult as permissible scope of the search person incident to a Heard lawful arrest. initially by this decided a division of ground court on a not raised in the trial court, the case was en banc. reheard taking Hampered by the fact that evidence District Court not focused first issue here, raised we concluded that resolution of that a re- issue must abide mand in ad- can done. We however, initially, dress ourselves to two questions, raised in District both here, pretermitted Court and which were Finding against appel- the division. both, lant on the merits of the remand we make is order.
I evidence, pretrial suppress A motion to form of from the narcotics taken Washing- Joseph Gartlan, Jr., Mr. V. possession appellant at the time of court) ton, (appointed by D. C. evidentiary subject arrest, was the of an Washing- Crummey, Mr. John K. whom ton, jury. hearing presence of the out brief, appel- C., D. was on the hearing Met- Officer Jenks lant. ropolitan Department Police testified April 19, that at 12:45 A.M. on Henry Greene, U. F. Asst. S. Mr. stopped and U Cadillac at 9th A. Atty., Thomas whom Messrs. Streets, W., N. for what he described Flannery, Atty., U. S. John A. spot Appellant, the check.” a “routine Evans, Attys., were Asst. U. S. John F. ex- Cadillac, asked driver of the brief, appellee. Earl J. Mr. on the permit the vehicle his driver’s hibit Silbert, Atty., S. also entered Asst. U. according to registration. Appellant, appellee. appearance for Jenks, temporary driver’s handed over Washington, registration, permit, selective Scott R. Schoenfeld Mr. C., Ameri- Jenks filed a behalf of service classification card. Officer brief on D. Enforcement, these third of notes of the first and cans for Effective made Law Inc., remarking process dis- items, amicus curiae. each, during orig- crepancy dates on draft card in the birth and, being stop, subsequent on inal ex- driver’s Jenks’ on the card, Appellant then amination of the traffic records. Mrs. Ewing, the draft go way. permitted to on his an enforcement clerk in the De- partment Vehicles, records then checked traffic of Motor testi- later Jenks *3 appellant’s fied, cross-examination, li- driver’s that without as discovered revoked, Department that the what the of the cense had been records permit temporary issued The third Mr. had been showed. witness was represent- Steele, sponse application testi- to an which Government chemist. He fied en- to be 1938. that received a locked sealed ed the date birth he velope Gorney April from Officer on days later, April Officer Four on Gorney’s put He initials and his oper- again appellant, Jenks ating encountered outside, on and also a labora- name the Jenks the same Officer Cadillac. tory envelope control was number. The it, with, put stopped “the him as he him, by receipt sealed and intact oper- arresting [appellant] for tention of no indication that it had there was obtaining ating revocation after tampered Upon opening in been with. by permit misrepresentation.” When laboratory, envelope the a smaller sealed temporary appellant produced the same tape inside; with scotch found was before, “he permit that as told he was cigarette package inside that was operating after rev- was under arrest for taining capsules. Gorney’s and Jenks’ then testified: ocation.” Officer Jenks by places initials were in the testified to chemically being rights, capsules, and them. The on “I advised him of his analyzed, immediately found to contain heroin. searched him in front were laboratory They pocket— vault I noticed in left coat remained me. his up brought by coat, pocket until the courtroom. of his Steele to breast wadded package cigarette opened package. I Steele’s brief cross-examination was — tampering, largely signs gelatin cap- confined to it. Inside was found 14 as on direct. but his answers were sules.” Appellant testified stand and took the cigarette identifying After first during that, on direct examination package capsules in it as the with the original stop, asked to see had Jenks property appellant, him from taken produced his he had draft card after his Officer Jenks his testi- concluded direct registra- vehicle and the driver’s mony did with an account of what he cross-examination on tion. He admitted capsules with the He after their seizure. age in misrepresented his had that he seeking placed package, his on to- initials permit. driver’s second gether next with the date and time. The morning he turned it over to Officer Gor- taking com- so of evidence With having ney Squad, kept ap- suppress, Narcotics pleted on the motion interim, it in to which his locker asserted two rea- pellant’s trial counsel only key. locker had Officer Gor- granted. why should motion sons ney presence, and made a field test in his purposes of the routine that One was cigarette package placed in a then ap- exhausted when spot had check envelope sealed cream-colored which he pellant to Officer Jenks exhibited tape, placing scotch his initials registration, permit and driver’s envelope, as and time on that appel- date right require that Jenks did Jenks also Officer Officer Jenks. It was his draft card. to exhibit lant Gorney proceeding discrep- then age observed Officer that, urged since work, paper included with his ancy draft card revealed writing a locked on what is known everything suspicions, aroused Jenks’ envelope. sealed discovery including followed, that the later the occasion on the narcotics was cross-examined Officer Jenks of this fruit turning arrest, the forbidden briefly (1) the over of illegal point keys. second picked up appellant’s initial action. The He coat support Finding motion advanced in the car and searched it. narcotics, that no unbroken evidence revealed he announced to custody chain of of the seized narcotics he was under arrest vio- narcotics assuring reasonably capsules in- Appellant lation. said that he had al- into evidence were the same troduced lowed his coat to be worn else someone day, he took from the which Jenks said those and that he himself had never possession appellant. placed rebuttal, At the conclu- narcotics it. On Of- arguments counsel on sion of ficer Jenks testified as follows: court, claims, merits of these two “Q. get Jenks, you where did elaboration, denied the motion. without jacket you from or did where jury, succeeding trial before At find the narcotics ? capsules stipulated it was *4 my pocket “A. In left breast like his appellant allegedly from evidence taken jacket right jacket here —like the (2) heroin, their did in fact contain I on. custody Jenks from chain of was Officer “Q. jacket you Where was the when Gorney to the to Mr. to Officer Steele recovered the narcotics? the courtroom. Officer Jenks was wearing “A. was it.” He testified prosecution the witness for colloquy pertaining court the essentially the he had on on direct theory given, to to the the instructions suppress.1 to He was cross-exam- motion jury ap- the made defense before only briefly, ined and there were exchange: pears clearly in this except relating questions the to appellant understand, you asked whether one which “THE As I COURT: car, got drug he deny his on when coat oafr do not the narcotics was in the affirma- by to which the answer was that officer found night coat, tive. it found in that was your position being that coat but defense was first witness for the The possession of the de- out of the was Smallwood, he that was one testified who period for a hours fendant latter appellant in the car when April, it and when was ap- stopped second time. When was friend, turned, it was thrown got back pellant the car and walked out of car, Shorty, seat of the the back Smallwood, Jenks, said to meet Officer defendant, and and not worn on; appellant coat did not have his drug in the found the the Officer lying instead, was, seat in the back Shorty. lent that had been coat immediate had left ear. Smallwood your position ? Is that vicinity the narcotics the car when “[DEFENSE although discovered, ob- he later were Yes, your Honor.” COUNSEL] searching The car. served the oc- the third him or police did not search stopped. II was
cupant of the car when got court, points that, appeal three to this after On Appellant testified counsel, by appointed who he was told that raised the car and was were out of the Dis- misrepresentation, represented Of- had not get that a claim car One went over trict Court. ficer Jenks right, Now, then what description sir. “Q. trial of All Officer Jenks’ happened? finding the narcotics is contained colloquy: in front of me. following him I “A. searched W,hat jacket you then, left In his on. officer? had a do He “Q. did pocket pocket jacket awas coat I him he was under “A. advised — packet cellophane up operating after revocation wadded taining gelatin capsules permit by misrepresenta- obtaining powder.” white contained tion. denying appel District erred in case Court was set trial was denied pretrial pro se, motion, lant’s made him. dismiss the indictment for want of speedy period appel The of time from required the Sixth trial April 23, 1968, lant’s arrest on related to Amendment. other two August 21-22, 1969, just trial on suppress, and consisted motion appears, short of 16 how months. argument custody made chain ever, principal that the reason for the de unsuccessfully Court, and in the District lay Gorney, who anwas (2) a narcotics contention were respect essential witness with nar seized in a search which exceeded proposed cotics to be introduced in evi proper scope a traffic of one incidental to dence, suffered a severe heart attack t.2 course, is, arres The latter 1968-69, winter and the Govern sharp argument, pressed contrast obliged ment was to seek continuances here, the District testify. until he could The record shows suppression should from flow one such continuance March circumstance of the initial examination 1969, April April On the Gov days four ar draft card before reported ernment it would be at do first rest not turn itself. We least another month before Officer Gor ruling scope issue, since a instance to ney’s appear, health would him to appellant on the either the merits of *5 that, unwilling appellant since was custody speedy ques trial or the of chain Gorney’s stipulate to as to what testi in dismissal of the tions would result mony be, would further continuance charges against appellant un and render necessary, appellant’s was to which coun necessary reaching important our an con object. sel connection, did it not In this question stitutional on a record not com appeared appellant’s counsel was piled to reference it. willing stipulate requested, ap to as pellant event, Speedy would not 1. Trial consent. Gorney testify, never was able to Although continuously appellant was go had trial Government to to without represented by appoint- in the trial court reported above, however, at him. As counsel, appears ed he filed to have on forthcoming stipulation trial was 1969, pro 26, June se motion to dismiss trial have made defense which could speedy for lack In this motion of a trial. possible many months earlier. only appellant complained the fact of jail that he in months certainly had been for 13 Although are more 16 months delay unable to make bond. This motion was enough way invite than in the of to judge referred whom scrutiny, before of examination our closest suppression hearing, records, purpose At Officer in that his central that, appellant Jenks testified in the course of the their en- second investigation made him after first for narcotics. counter was search stop, recognized appellant pic- appellant’s presentation he in the Thus, of largely permit ap- ture attached to the driver’s was division search issue plication pretextual allegedly in the traffic records. He was ar- in an terms of all, then asked on direct at rest, examination whether at in law is no picture purposes he had found lawful “another least respect did, Appellant files in a to Mr. Robinson?” His thereto. incident argue brief, affirmative, also in the answer was and he to his short footnote picture being appellant’s “in in the car that, described was coat if Jenks, central records where the criminal searched files it was when per- kept.” Although nothing of a made exceeded have legitimate appellant’s Court, this in the District missible that, argued vehicle brief the motor in this court because for a violation opinion as- appellant prior in its fact division narcotics The laws. underlying alterna- record, these convictions on his Officer Jenks the facts sumed appellant. against to be knew of this from examination tive formulations jus- consequences require pub- the record does not convince us it does requires appellant of his prosecution dismissal lic in the tice to interest one charged yield This not case where indictment. with serious crime to purposefully appellant’s expeditious was either de- Government interest in an neglectful. pre- inadvertently charge It was termination against merits go pared trial the nor- well within him. course, but, through of its mal no fault Chain, Custody own, put necessity seek- under the Appellant insists that the narcotics ing delay Gorney’s health until Officer should not been admitted into evi- improved. Appellant’s not counsel did prosecu- dence for the reason that the reg- object this, appellant himself tion failed to establish a chain of con- only a no istered dissatisfaction until custody their tinuous from the time of began. few weeks before the trial appearance seizure until their in court. allega Moreover, there occurred, said, break so is reason tion before the District Court Gorney. intervention of Officer Al- significant possibility prejudice able though that he testified Jenks preparation de of his Gorney’s envelope saw a locked sealed See, g., United fense. e. Coleman v. possession, say did actual- not he States, U.S.App.D.C. ly placed envelope the cream-colored saw 408-410, 442 F.2d 156-158 Gorney actually seal it nor did he see (1971); Hedgepeth larger Steele, envelope. Since Mr. U.S.App.D.C. 291, 294, 364 F.2d chemist, locked did receive the complaint His was that his days later, envelope until five sealed continuity long pretrial jail detention was so argues not, chain right. to violate his Sixth Amendment appellant, fashion in such accounted for length pretrial While incarceration is guarantee capsules that the offered as to consideration, important appel- those taken from evidence were *6 one of several factors to be taken into lant's coat. account, may be overridden past, the have in We showing, us, like that before delay. of a reason necessity out, points the of been alert to for the United See States v. high maintaining in the se- standards Ewell, 116, 120, 773, 383 U.S. curity Novak evidence. of criminal See (1965), Note, 15 L.Ed.2d The Columbia, U.S.App.D.C. of v. District Appeals United States of the (1947). re- most Our F.2d 588 Circuit, District of Columbia 1968-1969 principle, how- of cent formulation this Term, (1969). 58 Geo.L.J. 14Ó-141 States, ever, appears v. United in Gass allegation kind It differs in from an 11, 14, U.S.App.D.C. 416 F.2d specific impact instances of adverse pos- that “the we said where upon preparation trial and defense. At adul- of misidentification sibilities trial, the appellant produced one wit eliminated, not ab- teration [must] ness who as at the scene the arrest of reasonable solutely, a matter but as supported theory presented and who probability.” jury. defense No other might was identified witness who willing to appellant was At trial better. done from capsules went stipulate that being “no there is Steele, said that Gorney We have before Jenks a fixed time sets touchstone of the court in last-named produced automatically say period re maximum that on prepared not We are room. quires Amend application probabil the Sixth is such this that there record tampered Hedgepeth having ment.” ity capsules 291, U.S.App.D.C. F.2d as to Gorney’s possession in while It Although delay this case in evidence. in them inadmissible render was, Gorney is, course, true nor regrettable, causes neither its beyond reasons his own and the Govern- protection the interest of the himself, control, testify unable to officers, ment’s arrestee, do from Mr. Steele that we know those with whom he into come envelope from custody.4 received locked sealed tact away while To clear Gorney, and he found inside the end, obstacles to repre- this made has envelope cream-colored sealed with go beyond sentations of fact which those bearing tape and scotch Jenks’ Gor- ascertainable from the These are record. ney’s initials—all as testified said to be derived from consultations be- handling Jenks.3 tween Government counsel appeal prosecutor and the who tried light In the of this other corrobo- case, reported and consist of assertions circumstances contained rative by the latter that Officer told him Jenks record, impressed are not we that he “did fact [Jenks] conduct a chicanery or carelessness likelihood appellant by examining search the left handling cap- characterized the pocket breast of his outer and did coat point journey some in their sules at not patdown.” limit himself to a mere appellant is If Jenks to courtroom. light concessions, In the of these hardly innocent, it is because in fact capsules Government asserts that no need there is not in the coat are found for a remand it disclaims because capsules We find offered evidence. plain reliance the doctrine of view. rejection of Court’s error in the District ground suppress. motion this argue us, does Government
however, overriding justifica- right Ill part tion on the of the ar- resting officer to conduct an unlimited nor en Neither before the division person protection search of upon the banc relied has the Government safety safety all officer’s unavailability appeal of issues normal persons with the arrestee would whom Indeed, in trial court. raised custody. come into contact while in rehearing suggestion en banc arrest, asserts that unlike an lawful strongly pressed court to de- has continuing vestigatory stop, creates a right unqualified clare that there is lationship and his between the officer of a as an incident law- prisoner protective which warrants a arrest, irrespective of ful the nature made, going beyond the mere frisk —a the arrest crime *7 gap of and revocation his driver’s Novah an asserted between involved testimony obtaining permit by misrepresen- police a new the of officer who by tation, defined, respectively, sample placed stat- it are secured a urine and in initialed, § and 40 D.C.Code which the testi- ute ordinance. a flask he Regu- who, (d) ; 157(e) mony testifying the Traffic of a chemist while Section court, the of Columbia. The in had in hand the bottle contain- lations of District subject by court, punishment ing a fine former is urine he had tested. This to the imprisonment inadmissibility, $500, opting of $100 in for was both- to or days year, by The latter to one or both. the failure to have the ered testify present $300 fine not more than or in carries a the bottle officer expressly jail. days is in The former he used and was the had court same us, in Order No. General Jenks referred In the case before marked. Department Metropolitan envelope, Police as the the cream-colored testified that by produced in by of traffic offenses class him one of Steele described making in court, is warranted the officer in which one in was the which and, summary arrest; time cigarette package. at enclosed involved, rules of the arrest here precluded the question General Sessions appears Court of no on this to be There (which posting is sub- regarding propriety of collateral mere record appear- ject without court to forfeiture into decision to take Jenks’ custody, required ance) bond instead a $300 the offenses view of appear obligation securing offenses, arrested. Those he was e., i. operating after court. motor vehicle protective search indeed that is not sence of the traditional and tested meth- adversary getting in the of the officer but of the arrestee od of at the truth in an appellate sense that latter will not be able context. function is best Our against suicidally performed ar- himself lethal us a use when there is before likely by mere ticles not to be disclosed record made under circumstances where patdown. are, in trial counsel and trial court alike taking evidence, fixing their at- purpose If a of this character is to upon tention what claimed to be is provide legal search of basis applicable principle of law. appellant’s person case, this presumably us, be of interest to know-such the record as it On came things surely as whether search faulted Officer Jenks’ District Court is not to be began ruling this case and ended with rule as it did. How coat, pocket appellant’s something left breast after remand is leave to we regula- departmental practice whether the event. We need not decide whether might require officer tions every we the conviction stand let person light case to in spect search of the silence with record’s thoroughly completely plain arrestee point view or other circumstanc- bringing in order assure the of arrest es established search within objective safety permissible scope. Such an A new both. doctrines of by hardly by realized a search which termi- element has been added Govern- incriminating representations, evidence nates the moment ment’s extra-record though ignor- found, hardly itself even which we are warranted ing. They us far from The record before finished. us little no room for leave score, by remains so disposing on this is silent affirmance of this case although, inquiry, after the volunteered even Government’s further without hearsay they go supplementation. above, double so far neither do dicated provide reliable factual base as to Moreover, inevitably diffi- there promulgate law for the rule of which to supplementa- culties with kind of contends. Government tion, compared testimony oath on the record elicited examiner made, dowe to be a remand is Since and cross-examiner alike reference length legal pursue issue not precise articulation of what is claimed permissible scope governing A to be the law. witness arrest. to a lawful purpose not to evade or distort will comprehensive has been done This story infrequently quite tell a different majority divis opinion issued rehearing rigor- ion,5 petition when examined under these more and in the rehearing suggestion conditions. The rule of law we are en banc ous identify urged They important ad- to declare is too filed the Government.6 authorities, and mit of confident delineation in the ab- and discuss the relevant majority although dissenting judge, 5. The asserted ac- a search *8 formulation, only cepting him- incident to arrest can have this addressed two law- objectives. impro- ful is the seizure of evi- to be the One self to what he insisted reversing giving jrriety on the District Court dence of arrest; the crime rise to the of which, any point presented it and and the other is to remove not to brought resisting been, might weapons have out useful in if it had clearly validating effecting escape. the seizure. held the search facts (1) in valid this case because the crime arguments, e., appellant (i. noted the 6. In addition to for which arrested provide purpose permit revocation) driving above, to the broad car after as to arising comport protection out of the cus- the existence of total did by legal relationship tody evidence, being created and there further stop, investigatory appellant’s searching pockets an as distinct basis for may alleges weapons evidence, scope there the Government the evidentiary patdown. basis well have been limited to a search was during they foundations dence seized forth the theoretical incident set support con- variously the an arrest for violation of a in District of advanced regulation. flicting is or law Columbia motor as to what the vehicle On claims by Familiarity evidence, appellant ought with them the basis of this to be. by jury in participating convicted in the District and counsel Court both court possession matters the of narcotics. illuminate the remand would generally decided, explored to be leading up The events to the search pur- the realization contribute April 19, as were follows:1 On being poses remand is Metropoli- Officer Richard Jenks of the made. Department stopped tan Police a 1965 Assuming only Ninth and the moment Cadillac at intersection of W., Streets, spot court in this U N. for a “routine the Government’sdisclaimer stop, testi- plain out check.” At the time of this view borne pro- only appellant’s remand, mony case well Jenks examined not this on (temporary) operator’s permit rational appropriate vehicle for and auto- vide an personal registration card, his mobile but also definition of arrest —an to lawful selective service classification Of- card. searches objective urgently important permitted appellant ficer to con- Jenks business, cir- justice in this tinue about his after administration of making achieve- of its of the three His *9 purpose. public However, show, having my opinion like this serves will as disputes in the Gov- resolved all factual significant discrepancies favor, 1. two as a There are ernment’s I still find matter by appellant opposing in in the facts rendered law that the search of point parties, I out in subse- unconstitutional. which will this case was 1224 days subsequently appeal
permit appellant four he had exhibited filed which earlier, for placed appellant under arrest now before us. operating revoca- vehicle after a motor I hold the search of Rob- Willie operator’s permit for and ob- tion of his inson to be the basis unconstitutional on taining by misrepresentation.2 Amendment the fundamental Fourth According testimony, Officer to his given principle which has been renewed rights, [appellant] his Jenks “advised 5 emphasis housing inspection in and immediately in front and searched him 6 stop-and-frisk will cases: com- pocket— I noticed in his left coat me. ply pro- Fourth Amendment’s up coat, pocket of a wadded breast his requirements scope tective if opened
package cigarette package. I — necessary is no than broader to accom- gelatin 14 found Inside was [sic] it. governmental plish legitimate objectives. 3 placed capsules.” Appellant then was principle clearly This most in stated possession narcotics.4 under Ohio, 1, Terry 1868, v. 392 U.S. 88 S.Ct. 1968, 16, appellant 20 On L.Ed.2d 889 in the Su- October grand jury possession preme upheld dicted an on-the-street de- drugs weapons 26 U.S.C. 4704 and § narcotic under tention search for of three (a) receipt suspects. (1964) po- conceal- and and Court found that drugs Terry “adequate 21 ment under U.S.C. lice officer had of narcotic 1969, August 22, (1964). ground,” probable he stitutional but not 174 On § cause, detained to believe that the men he guilty by jury both on was found going and to commit indictment, searched were charged counts as significant discrepancy 4. significant The second fac- 2. The first of the differences scope accounts to do with the presentation tual has facts, at least timing of the search Accord- given oppos- itself. emphasis the facts Jenks, appellant ing to Officer was wear- sing parties, check on the further centers ing time the coat at the of arrest. Ac- “criminal records” Officer Jenks of cording appellant to both second after he had checked occurred witness, appellant sympathetic appellant was not “traffic records.” Counsel for arrest, wearing his at the time of appeal appellant coat did have stressed that go prior Jenks had to into ear and Officer a tions, convic- record narcotics two pockets. pick up the coat and search its suggested that Jenks Officer Accepting prior record, appellant’s version of Government’s aware of heroin investigation admits that through the search —which capsules a minimum inside crum- records,” were discovered the subse- “criminal quent used n pock- pled cigarette package in pre- the breast traffic as a violation arrest jacket wearing et text for a narcotics search which would plain view) (clearly magis- still find not been allowed neutral —I gone of this search to have for a war- trate had Officer Jenks unconstitutionally broad, the reasons out, made rant. be Were this claim given clearly illegal in text search would authority infra. v. Lefko- of United States City Municipal Court of 5. v. Camara 420, 467, witz, 452, 52 285 U.S. S.Ct. 76 Francisco, 523, County of San 387 (1932) ; v. L.Ed. 877 Amador-Gonzalez ; (1967) 1727, L.Ed.2d 930 18 87 S.Ct. States, Cir., 5 F.2d 308 391 541, City Seattle, 387 U.S. 87 See v. ; Taglavore (1968) 9 v. United (1967). See 319 18 L.Ed.2d S.Ct. Note, Cir., (1961). 291 F.2d The arrest- Hous- Amendment and The Fourth ing officer, however, denied that Inspections, ing L.J. Yale strategy to evade such motive (1968). protec- Amendment normal Fourth Ohio, 88 S.Ct. 392 U.S. and, supra, tions stated in Note ; New opinion 20 York, Sibron purposes L.Ed.2d I the cepted of this have ac- 392 U.S. of this the Government’s version LaFave, (1968). See question. L.Ed.2d factual Encounters” and Constitution: “Street quote hearing on This taken Beyond, Sibron, Peters, Terry, suppress. Jenks motion Mich.L.Rev. testimony gave substantially the same trial.
1225
by
prior approval
opinion
stressed
a neutral
the Court
made without
In its
crime.
governs
magistrate.
all
not
Because a warrant will
Fourth Amendment
that
agents
public upon
by
be
to insure that
available
arrest-based
intrusions
15,
security,
in
at 18 n.
their
personal
searches are reasonable both at
892 U.S.
execution,
1878,
ception
manner
and that
their
courts
at
88 S.Ct.
search,
constitutionality
con-
are
such
and seizure
must
of
review
See,
g.,
special
rea-
of their
much the test
searches with
care.
e.
is as
ducted
they
102,
Ventresca,
were war- United
v.
380 U.S.
as whether
States
sonableness
28,
106,
741,
(1965);
at
S.Ct.
85
holds
for
that
incident
a lawful arrest
upon
probable
to
volved a search
than
less
theft,
requires
cause,
a
in-
such as
scope
principle
crime
which
the
limitation
fruits,
is
apply
struments
and
there
bears
to
to all searches no matter what
ample justification
evidentiary
a
warrantless
the
basis for their initiation.
person
17-19,
the
search of “the
and
arrestee’s
U.S. at
392
J229
suspect’s pockets
rather
than frisk— for
exists,
which no evidence
so that
constitutionally
legitimate
still
objective
have
in
sole
of the search is
“reasonably
protect
valid because not
limited in
arresting officer,
then
accomplishment
greater
intrusion
than a frisk will be
goal
might conceivably
justi
comparison
unconstitutional.
A
of fac-
inception
protection
settings
fied its
tual
leaves no doubt
—the
”
* * *
officer
S.
arresting
likelihood
harm to the
of-
greater
Ct. at 1904.
ficer
Terry
was far
than in
the case which is now before us.10 A
Terry,
Peters,
Sibron and
when read
properly conducted frisk here would have
together,
that,
proposition
stand for the
provided appropriate protection
whether
for the
detention
is based
probable
not,
cause or
greater
if the crime is one
officer.11 The
intru-
Ohio, supra
dealing
whom he
Note
ar-
is not armed
resting
weapon
searching
unexpectedly
officer
with a
men he
that could
suspected
attempted
fatally
robbery,
against
him,
serious
used
weapon
crime for
wrote:
is often an
“ * * * Certainly
instrument.
In this case. Officer Jenks
it would be un-
*14
virtually
require
police
had
reasonable
no reason
all
to
at
to fear
that
of-
danger.
unnecessary
all,
per-
he was in
ficers take
First of
he was
risks in the
arresting
formance
Willie
of their
Robinson for
crime
duties. American
weapon,
long
which does not
involve
criminals have a
tradition of arm-
secondly,
violence,
previous
every year
both
ed
his
with
encounter
in this
country many
Robinson and
law
Robinson’s behavior at the
enforcement officers
provided
duty,
time of
are
the arrest
killed
the line
no basis for
and thou-
suspicion
Virtually
even a
sands more
reasonable
that
Robinson
wounded.
dangerous.
all of
was armed
these
Under these
deaths and a substantial
portion
injuries
circumstances,
manifestly
it
is
to
clear
the
are inflicted
guns
me that
the same frisk
and knives.
which was found
“ * * *
Terry
proper
justi-
to be
When an
no broad-
officer is
—because
necessary
believing
accomplish
legiti-
er
fied in
than
to
the individual
suspicious
objective
provided
whose
tigating
mate
com-
behavior he is inves-
—would
plete protection
range
at close
is
for Officer Jenks.
armed and
presently dangerous to the officer or
reading
Terry
11. A careful
and Sibron
others,
appear
clearly
to
it would
be
to
compels the conclusion
will
that a frisk
deny
unreasonable to
power
the officer
protect
sufficient
of-
be
to
necessary
to take
measures to
place,
In
ficer.
the first
it must be re-
person
determine
whether
is
properly
membered that a
conducted frisk
carrying weapon
fact
and to neutral-
“petty indignity.”
is far more than a
physical
ize the threat of
harm.”
Terry,
Supreme
pains
Court
takes
23-24,
1231
case,14
impermis-
arrest
is
is
present
which the
made
in this
not
cumstances”
g.,
See,
v.
not
e.
United States
One
sible.15
or automobile
search of
E.D.Wis.,
F.
Hardtop,
224
Cadillac
offense
1963
the nature of the
related to
robbery
general
that
crimes such as
rule is
rest
involve
L.R.3d
fruits,
violations,
for which
be
as an
narcotics
made
no search
*
*
* ‘The
do exist.
and other evidence
struments
a traffic arrest.
to
overwhelming
Maroney,
weight
g.,
law
v.
399 U.S.
E.
Chambers
the case
1975,
(1970),
right
42,
419
to search
26 L.Ed.2d
there is
holds
Cooper
California,
occupants
v.
386 U.S.
car or
either the
(1967).
for an
17
made
S.Ct.
L.Ed.2d 730
when arrest
87
itself
car
Co.,
Dyke
Taylor
Mfg.
George,
Implement
ordinary
Con
v.
traffic offense’.
1472, 1475,
20
Evidence
S.Ct.
Limitations on
stitutional
Continuing
(1961),
Cases,
in which the search
L.Ed.2d 538
Inst. of
Criminal
* *”
*
illegal
Education,
Legal
an
held
automobile was
supra
States,
grounds,
care-
other
v.
Amador-Gonzalez United
fully
open
question
n. 8. See
left
“whether
E.2d at
315-316
Note
may constitutionally
N.D.Tex.,
Beto,
car
also Grundstrom
F.Supp. 912,
‘incident’ to
for a traffic
n. 4
searched
921-922
offense.”
22 state
cases
citation
an automobile incidental
however,
jurisdiction,
Within our own
has been
traffic
for a
violation
Ap-
the District of Columbia Court of
bearing no relation
held unreasonable
recently
peals has
invalid a search
held
the offense.
following
ar-
of an automobile
a traffic
“special
ground
circum
common
The most
rest on the
the search had
be
information which
stance” is new
no relation to the offense for which
readily apparent
the vehicle
after
comes
arrest was made.
hold-
While the actual
arresting
ing
right
stopped,
officer
when the
of this case
had no
plain
impound appellant’s
of another crime
sees evidence
and to search
car
Cir.,
g.,
during
going
view,
Nunez v.
the time
e.
(1967) ;
through
booking process
or when the offi
traf-
F.2d 538
for his
suspicious
by one
movement
fic arrest and
had been
cer notes a
while
car
occupants
precinct
parked
parking
as he makes
of the car’s
lot for
Thomas,
hour,
g.,
implication
approach, e.
less than an
the clear
United States
;
S.D.N.Y.,
F.Supp.
to be drawn from
this case is
has extra
same search made at
the time of the
when the
officer
knowledge
“exploratory
which either
connects
arrest would also
crimes,
passengers
*16
therefore
or
with other
forbidden.” United States
driver
N.D.W.Va.,
Pannell,
925,
g.,
Boles,
D.C.App.,
A.2d
e.
v.
266
v.
256
927
Davidson
(1969).
(1967),
F.Supp. 645
or at least increases
ex
likelihood that such
connection
panel opinion in this case
Until
ists,
N.D.W.Va.,
g.,
Boles,
e.
Kershner v.
question
open
left
this
had
court
F.Supp.
(1963).
kind
212
9
The other
constitutionally
person may
be
whether a
fully
“special
upon which
circumstance”
for
an arrest
searched incident
uphold
commonly
incident
courts
searches
special cir-
offense and absent
traffic
traffic arrests is an indication that the
States,
cumstances.
Hill v. United
either
violator is under the influence of
U.S.App.D.C. 233,
135
Supp. (1963): minor 409 “[A] F.2d 1057-1058 then generally justify Judge traffic violation will not Chief Murrah17 wrote passen- panel: a search of the vehicle and its unanimous Tate, gers.” also v. See United States “By its own terms the Fourth D.Del., F.Supp. (1962); United protects ‘against people Amendment Gladden, Krogness States ex rel. D. unreasonable searches and seizures.’ Noting Or., F.Supp. Thus not all run searches afoul of the only legitimate objective that the of most only constitutional sanction but those searches incident to arrests for traffic origin scope. unreasonable While protection offenses will be the of the ar- evolution this constitutional resting officer, one lower federal court standard of reasonableness has varied recently found that all “[t]o justice, with our sense of it is certain searches incidental to an arrest to be today that warrantless searches justified theory on the the officer probable cause are reasonable searching weapons is would be to al- when it is unfeasible to obtain a search fishing * expeditions * low wholesale when- proper warrant on affidavit *. legal ever a arrest is made.” Grund- course, Unless, reasonably it is ‘in- Beto, N.D.Tex., * F.Supp. strom v. * legal cident’ *, (1967).16 can be said ‘stop to be a mere Ohio, frisk’ as in Perhaps supra the most forceful statement * * York, Sibron v. New principle applicable *. Not- here comes ably, exceptions these from a based on recent decision of the United Appeals anything States Court of exception Tenth inherent it- Humphrey, Circuit. In United States v. self but result from the inductive case opinion F.2d at But this refer did search for evidence of another offense general permitting significant doctrine legally only because incident and stressed that this bears on the reasonableness of “subject doctrine is to restriction search. Search and. to arrest sham, limitation where the arrest unreasonable, is a if there is a lack of rela- permissible or where the search exceeds (or scope tion between the search U.S.App.D.C. bounds.” search) and the offense for which (Emphasis added.) F.2d the arrest was made. That lack of re- lationship regard exists without interesting 16. See also the discussion of when, motivative cause of the arrest problem in Amador-Gonzalez v. case, in this an automobile driver States, supra Note 2. The court making wrong arrested turn but in Amador-Gonzalez holds that the search is searched for narcotics. appellant’s automobile incident to ar- agents “In this case one of ad- rest traffic violation was unreason- mitted that he arrested Gonzalez in merely able because the traffic arrest was order to search the automobile for nar- pretext Judge for a narcotics search. often, cotics. More the determination goes point, Wisdom on from this how- *17 requires of the motivation for an arrest ever, argue to for a test which will switch subjec- judicial some divination of the emphasis in assessments of the rea- tive mind. We will have fewer uncon- subjec- sonableness of searches from the tive intent of the emphasis searches, stitutional if the is arresting officer to objective relationship on the between logical manageable objective rule: “ the nature of the offense and the nature * * * that, pretext I would hold (circumstances) search, of the rather pretext, or no a lawful arrest of an than on the motivative cause of automobile driver for a traffic offense arrest.” provides predicate no lawful Judge 391 F.2d at wrote 315. Wisdom search of the driver or his car—absent January opinion Amador-Gonzalez special circumstances. “stop-and-frisk” cases decided 1968. The later add still further author- five months ity similarity “There is a between the position. already convincing to his ‘pretextual effect of a arrest’ and the arrest, effect of an Federal unlawful Now Director of the Judicial equated. two cannot be that a Center. Proof only pretext traffic arrest was to
1233
and violates
by
application
the constitution
search
unreasonable
case
protected
inter
Thus
Fourth Amendment
of reasonableness.
al standard
*
**
complc
traditionally justi
ests.
are
exceptions
We
these
agreement
prevailing federa'
protect
arrest
with the
the need
fied
authority
prevent escape,
ing officers,
in
and state
which condemns
collect
tentiary
wise
tion
a search
arrested.
the circumstances which rendered its
initiation
ship
strumentalities
rationale it
commit his crime.
supra
S.Ct.
(and
“strictly
crime
prevent
now
‘[T]he
must have
392 U.S.
arrest.
contemporaneous
v.
evidence,
permissible’,
As
protection
Hayden, 387 U.S.
tied to and
the criminal
delay
stated
which the
clear
or fruits of
L.Ed.2d 782
* * *
reasonable
* * *
Warden,
p. 19,
of the officer or
the search must
i. e. the deten
justified
might
accused
with
If
From this
Md.
the crime
escape
relation
scope
(1967)),
not,
S.Ct.
other
Peni
Ohio,
legal
by”
the American Bar Foundation
the issues.19
Arrest
appropriate
and conclusions have been reached
violations of the traffic
scholars who have
cisions
set forth in case of arrest
mentation ed,
constitutional
(Citations
following
the search of
n
[*]
[*]
My
as I
conclusion as
problems
(1965),
[*]
” other federal
omitted.)
to note
routine
Wayne LaFave,
shown,
safeguard,
whose
persons
led to his
given
that similar
opinions
traffic
long-term study
courts.
code,
and automobiles
careful
meaning
and its
being
analysis
violations.
author of
It is also
analyses
study
support
selected
volume
imple
of the
de
expired
plates
city
parked
Humphrey,
license
in a
18. In
that a
court found
approached
recreation area. The officers
warrantless
search of the
driver
the vehicle and informed Reid and an-
automobile
to an arrest for vio-
asleep
man,
city
other
both
whom were
lation of a
traffic ordinance was
therein,
they
despite testimony
were under arrest for
unreasonable
mem-
City
traffic
violation. At
Depart-
code
the direction
of the
bers
Oklahoma
Police
officers,
got
routinely
these men
out of the
traffic
ment
violators
weap-
were
they
danger
automobile and
“frisked” for
they
because
feel
are in
opened
stop
they
ons. When the front door was
whenever
an automobile.
heavy tools, including
bar,
some
were
found, however,
pas-
also
court
senger-defendants
the officers on the floor of
observed
the case had
tools, which were
standing
complain
the automobile. These
coupled
“plain view,”
product
then in
the driver or of
of that search
robbery
night
postal
be-
—money
fact of
not in the driver’s name.
orders
fore, clearly gave
orders,
money
coupled
officers
These
probable
more
extensive
passengers
cause
that one
made a
fact
which led to
suspicious
followed and
weapons
search which
motion with his hands as
money
box.
seat,
though putting something
the seizure of
under the
gave arresting
probable
cause
officers
Note,
See,
g.,
guns
e.
Search
Seizure —
search the
and made the
automobile
Traffic
during
Arrest
for
347;
Incident
Search
Violation,
discovered
the search admissible
Sime
1959 Wis.L.Rev.
trial.
as evidence at
one,
Traf
Incident to
Reid,
and Seizure
Search
F.2d
United States
Violations,
Louis U.L.J.
6 St.
fic
more recent Tenth Cir-
Scope
; Note,
Limitations
dealing
for a traffic
cuit case
with arrest
Arrest,
Yale L.J.
search,
Incident
subsequent
Searches
cites
violation and
Note,
(1969) ;
Per
approval.
Searches
Humphrey
Reid is an-
*18
with
Arrest,
Colum.
69
Lawful
upholds
Incident
to
son
other case
constitu-
which
Increasing
Way,
;
(1969)
tionality
L.Rev. 867
the automobile
a search of
Arrest,
Scope
to
Incidental
“special
Search
Post
The
circumstances.”
Note,
261;
Su
The
Oklahoma,
Towson,
Wash.U.L.Q.
1959
Office
burglarized
Fort
Term,
Harv.L.Rev.
preme
81
following morning
Court 1966
;
George,
Consti
Texas,
B.
police
Paris,
117-122
a distance
officers at
in
Evidence
on
Limitations
tutional
40 miles from
scene
of about
(1969).
burglary,
Cases
Criminal
an automobile
observed
Note,
to
of the Person Incident
as re
Bar
Searches
the American
Association
Arrest,
Lawful
69 Colum.L.Rev.
on the Criminal
porter to the Committee
(1969).
(Footnotes omitted.)
ago
years
Trial,
“[a]
over 10
noted
driver incident
search of
vehicle
and a
note
This Columbia note
is a
violation
to an arrest
for a traffic
to
the Yale Law Journal refer
searches
police practice apparently not uncommon
being
incident
arrests
es-
traffic
country,”
urged
throughout
pecially
abusive —because the offense
exacting
de
undertake an
the courts
very trifling,
very
often
and the search
problem
consideration
tailed
urge that
full-blown —but both also
“defining
scope”
proper
of such
applied
rule I have outlined should be
Note,
searches.
Search
Seizure —
broadly
more
ar-
to searches incident
to Arrest
for Traffic
Search Incident
rest for all crimes for
no further
Violation,
347, 1959 Wis.L.Rev.
evidence can exist.21
Very recently, a
in the Columbia
writer
only
Not
was the search of
Rob-
Willie
Law Review found:
theory;
practical
inson
bad
effect
“
* *
*
develop-
The historical
permitting
of a rule
warrantless
“full”
personal
ment of incidental
searches
searches incident
to most traffic arrests
support
furnishes no
for the validation
(or
matter,
for that
incident
to arrests
solely
of searches
based
the fact
crimes)
imag-
for status
is fearsome to
point
lawful arrest.
This
had been
Judge
written,
ine. As
has
Wisdom
early courts,
overlooked
most
danger
lowly
is “that
offense of a
likely because the fact
situations
traffic violation —of which all of us have
early
these
cases were such that under
guilty
at one time or another —
categorical
either a
or examination-of-
be established as
the basis
searches
per-
approach,
the-facts
an incidental
circumventing
rights guaranteed by
justified.
sonal search could be
Later
the Fourth Amendment.” Amador-Gon-
States,
Cir.,
zalez v.
analyze
United
courts’
391 F.2d
failure to
the historical
(1968).
The rule that a
underpinnings
of the rule led
full
sup-
search without a warrant will be
hardening
categorical approach
ported by any
gives danger-
lawful arrest
begun
recently
has
to be
ously
police
broad discretion to the
of-
questioned.
apply
Logically
ficers who must
it.
“The need for this reexamination is
consistently applied, such a rule endan-
”
* * *
gers
rights
physician hurrying
clear.
Judge
Nathan R. Sobel of the New
21. The court
is not called
to decide
Supreme
prob-
today
proper
York
reviewed the
limits for searches
offenses,
lem as follows:
cident
to arrest
for “status”
question
Worthy
“The
.arises—
to reexamine the
decision
“
right
U.S.App.D.C.
‘Do the
person
(1968).
do, however,
or automobile
IV illegal lant resulted from an search quiring his reversal of conviction. dissenting opinion at the Neither the respectfully majority I dissent. nor the division level challenges principles court en banc Judge (dissent- MacKINNON, opinion. recognized Circuit In- this of law ing) they argue : surround- that the facts stead ing were of Willie Robinson search necessity I see no remand and developed insufficiently in the District would affirm on the the record basis judgment permit on reliable finding supports below which that legality of the seizure of nar- up process narcotics turned Wilkey’s Judge dissent cotics. pursuant lawful search suggested opinion panel the nar- that highway lawful arrest of Rob- and, plain view have been in cotics operating vehicle dur- inson for a motor legally consequently, were seized without ing permit operator’s period his issue search. Thus the crucial factual revoked, It is also D.C.Code 40-302.1 § present posture is this in its case that arrest- obvious from record appel- whether the narcotics taken ing probable cause to believe officer plain lant were in view operating the that automo- the Robinson in a incident to were discovered not the described bile was Robinson Wilkey’s Noting Judge plain his arrest. permit operator’s vehicle motor Government, suggestion, in its view officer and he was he tendered banc, rehearing petition en commend- to search him therefore authorized candidly ably further foreclosed cards, such I.D. identification evidence speculation petition, on this Its score. handwriting, card, cards, credit draft page 4 n. states: etc., might prove proper his that tend “ * * * identity Robin- same disclosed Our consultation permit revoked. son whose had been Officer Jenks did in fact conduct probative by examining on such issues. Such evidence a search U.S.App.D.C. pocket and Vauss v. United left breast his outer coat (1966). evidence pat- F.2d 250 Such not limit himself to a mere did might probative possible as to any hearing also be on remand down. Since operator’s forgery this course disclosed would of Morgan v. fact, appellee it in further- D.C.Code 22-1401. felt § be Cf. U.S.App.D.C. expeditious States, 114 efficient United ance (1962). Thus I have disposition F.2d of the case to concede arguing difficulty finding purpose was reason- point for the Robinson appeal. Specifically, able to make a full concluded that we War- appropriate of identification. even to for such evidence containing Hayden, Penitentiary suggest package den Md. year, 40- punishable D.C.Code § or both. for one 1. This is a serious offense imprisonment a maximum fine of $500 *20 301-310, 1642, 294, L.Ed.2d (1967). of the motor ve- is also violation
hicle statutes
District
Columbia
any person,
under the influence
while
drug,
any
operate
of a narcotic
motor
Columbia,
vehicle in
District
D.C.
Likewise,
40-609.
it is “unlaw-
Code §
* -x-
* * *
*
transport
any
ful
f0
drug pos-
article
contraband
[narcotic
intent, etc.], in, upon,
sessed with
* *
*
any
means of
vehicle”
which,
act
the motor vehicle
“seized and forfeited.” 49 U.S.C. §§
Matthews,
Judge,
Senior District
782; One 1960 Oldsmobile Convertible
opinion.
dissented and filed
Coupe
U.S.App.D.C.
v. United
also,
(1966);
F.2d 958
see
Cooper California,
58, 60,
S.Ct.
der a revoked require does not eyes the officer to close his to these other offenses which involve motor vehicles imagine and would be hard to how thorough Robinson for identi- evidence, plainly fication which was au- thorized, up could have failed to turn
narcotics which were discovered. I re- spectfully dissent.
UNITED STATES America WINSTON, Appellant. Frank W.
No. 22917. Appeals, States Court of District of Columbia Circuit.
Argued June
DecidedJune condition notes items. A central cuit. note-taking ac- discrepancy of what him a version alerted ment is an authentic including case, tually happened this of birth listed in between the “1938” date may prove operator’s permit relevant temporary on the as such information problems operational respect the “1927” date of birth listed on field. police in this practices Of- selective service classification card. Only then, District traffic and aided ficer Jenks then went opera- con- application of law and discovered that records Court’s it, Robinson, permit as found issued to it to the facts tor’s “Willie ceived reach meaningfully Jr.,” revoked, determine born in had been can we light of permit temporary had been issued Amendment that a the Fourth Robinson,” existing Supreme decisions. born Court a “Willie permit and pictures The on revoked case remanded this The record per- temporary application on supplementary for a the District person; both mit the same were were of sup- evidentiary inquiry motion to on the stopped for man likenesses press. April on the routine cheek It is so ordered. April 23, 1968, duty, Of- On while Judge WRIGHT, Circuit J. SKELLY operating ficer Jenks observed (dissenting). stopped appellant, the same He vehicle. registra- in this case principal permit issue him asked for his admissibility evi- being of narcotics and, tion, cerns the the same shown places quent appropriate This was said reside search. footnotes at appellant’s revocation the fact notices of in text. version If drivers, normally offending accepted true, sent his facts were case finding appellant’s stronger. of such a notice would be far crepancies But where dis- probative possession occurred, would have been I have for the knowing opinion purposes commission of crime for stated them in light The Government which he was arrested. to the Govern- most favorable event, that, appli- argues ment, also it must be assumed whose version exclusionary jury rule cation in eases more trial. found credible