District of Columbia v. M. E. H.

312 A.2d 561

• Court: District of Columbia Court of Appeals
• Decided: December 5, 1973
• Docket: 6439
• Status: Published

Opinions

PAIR, Associate Judge:

This appeal by the District of Columbia (District) raises an important question respecting the jurisdiction of this court to review orders of the Family Division of the Superior Court, entered at the prehear-ing stage of a juvenile delinquency proceeding. The appeal was heard initially by a division of this court which, by an order entered April 23, 1973, dismissed the appeal for want of jurisdiction — one judge dissenting. However, upon petition for rehearing en banc, the court on May 24, 1973, vacated the opinion and order of the division and ordered that the case be reheard by the court sitting en banc.

By petition filed in the Family Division of the Superior Court, it was charged (1) that M. E. H., a child, “ . . . did carry on or about his person a pistol, without a license as required by law” in violation of D.C.Code 1973, § 22-3204, and (2) that “said child had in his possession or under his control a firearm, to wit, a pistol which had not been registered with the Metropolitan Police Department, in violation of Article SI, Section 1 of the D. C. Police Regulations.”

On motion of the child the court suppressed as evidence the pistol and suppressed also certain statements made by the child prior to his arrest. The District appealed and was met at the threshold with a challenge to its right to appeal,¹ the specific contention being that the child, although petitioned for carrying a pistol and for possessing a pistol which had not been registered, was nevertheless not charged with a criminal offense for the purposes of D. C.Code 1973, § 23-104(a)(l). We do not agree and because, in our view of the record, the suppression order was not well considered, we reverse.

We notice at the outset that a juvenile delinquency proceeding is not a criminal prosecution, that it does not result in a judgment of conviction of a criminal offense, and that no civil disability or other consequence usually associated with a criminal conviction flows from an adjudication of delinquency. See D.C.Code 1973, § 16-2318; Pee v. United States, 107 U.S.App.D.C. 47, 49, 274 F.2d 556, 558 (1959).

The simple and inescapable fact is, however, that a child involved in a delinquency proceeding is before the court only because he is charged with the commission of an offense proscribed by the criminal law. Unless, therefore, the child committed such an offense he could not under any circumstances be adjudged a delinquent.² Moreover, as recently pointed out in a per cu-riam opinion participated in by one of our dissenting colleagues:

The rules now governing juvenile proceedings in the Superior Court provide that pleas and findings are either “guilty” or “not guilty” rather than “involved” or “not involved”. See Super. Ct.Juv.R. 11 and 31(c). [In the Matter of: R. L. R., D.C.App., 310 A.2d 226, at 227 n. 2.]

The business the juvenile court is about is the administration of justice in accordance with humanitarian concepts now well established in our jurisprudence.³ In the process, the applicable due process standard is fundamental fairness. See McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

We cannot conceive that it would be fundamentally unfair to allow the District to challenge an order entered prehear-ing, which suppresses evidence in a juvenile delinquency proceeding. Nor can we conceive that any of the beneficent purposes of the Juvenile Court Act will be defeated by such an appeal. We therefore construe D.C.Code 1973, § 23-104(a) (1), to include within the term “charged with a criminal offense” the term “delinquent act.”⁴ Neither Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957); nor United States v. Greely, 134 U.S.App.D.C. 196, 413 F.2d 1103 (1969), requires in our opinion a different result since the holding in each case respecting the right of the government to an interlocutory appeal has received legislative disapproval.⁵

The legislative history of the District of Columbia Court Reform and Criminal Procedure Act of 1970 discloses without any serious question that the Congress intended to provide the District of Columbia with the same right to an interlocutory appeal as that provided the United States by 18 U.S.C. § 3731 (1970), as amended, whether involved is a criminal prosecution or a juvenile delinquency proceeding. To this end former D.C.Code 1967, § 23-105, was expanded⁶ so as to embrace substantially the interlocutory appeals provisions of 18 U.S.C. § 3731 (1970). See S.Rep.No.538, 91st Cong., 1st Sess. to accompany S.Rep. No.2869 (1969). See also H.R.Rep.No. 907, 91st Cong., 2d Sess. on H.R.Rep.No. 16196 (1970), where commencing at 110 it is said:

A comprehensive format for appeal by the prosecution in criminal cases is provided. Its purpose is to guarantee the public its right to a fair trial. Existing section 23-105 of the District of Columbia Code provides in pertinent part, that “In all criminal prosecutions the United States or the District of Columbia, as the case may be, shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions.” Because of its general language, existing section 23-105(a), which intended to grant the prosecution an extensive right to appeal, has been very narrowly construed by the courts. E. g., Carroll v. United States, 354 U.S. 394, [77 S.Ct. 1332, 1 L.Ed.2d 1442] (1957). It is the Committee’s intent to set out in specific language those situations, which in fairness to the public, require the prosecution to have the right to appeal.

. The only change [in § 23-104(a) from § 23-105] is the addition of the clause permitting the appeal from a pretrial order which “denies the prosecutor the use of evidence at trial,” a clause necessary to overcome the excessively narrow interpretation accorded the existing statute in United States v. Greely, [134 U.S.App.D.C. 196] 413 F.2d 1103 (1969) (denial of motion to reopen suppression hearing).⁷

Moreover it is not without significance that in identifying the proceedings in which the government is permitted an interlocutory appeal, the Congress, in amending in 1968 18 U.S.C. § 3731, employed the term “criminal proceedings”; whereas, in amending, in 1970, D.C.Code 1967, § 23-105(a), the Congress employed the term “a person charged with a criminal offense.”

Although, as pointed out above, a juvenile delinquency proceeding is not a criminal prosecution and could not result in a judgment of conviction of a criminal offense, the child was nevertheless charged with the commission of an offense proscribed by the criminal law or else he would not be before the court.

We turn now to the government’s challenge to the order suppressing as evidence the pistol and the child’s pre-arrest admissions. At the hearing on the motion to suppress there was testimony in substance as follows.

On January 28, 1972, about 11:00 p. m., there was an altercation at or near the front of a tavern. A police officer broke up the altercation and three of the persons involved went into the tavern. The police officer was informed by an unidentified person that one of the three persons who went into the tavern had a gun, that he was a “white male, with a buckskin jacket on [and] long blond hair, a beard and mustache.”

The police officer thereupon entered the tavern and observed four persons seated in a booth, one of whom answered the description which had been given to him. The officer identified himself and stated that he had reason to believe that one of them had a gun. The four persons were asked to stand up and the officer frisked them. Finding that none of them had a gun, the officer requested them to step out of the booth and, when they complied, the officer observed in plain view on the floor of the booth a pistol and seized it. The officer then inquired as to the ownership of the pistol and the child, the person who answered the description given the officer, replied, “[I]t’s my gun, I don’t want to get anybody else in trouble.” The child was then placed under arrest, after which these proceedings were commenced.

Controlling in this area of Fourth Amendment considerations are the decisions of this court in United States v. Walker, D.C.App., 294 A.2d 376 (1972);⁸ United States v. Frye, D.C.App., 271 A.2d 788 (1970); and Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476 (1968).

Almost directly in point is United States v. Walker, supra. There an unidentified informant advised two police officers that a man named Willie described as “ . . . wearing a black shirt and blue knit hat and having an artificial leg” was possessed of a pistol. A short time thereafter the officer observed four men on the porch of a dwelling, one of whom answered the description the informant had given them of Willie. Upon approaching the group, one of the officers felt the legs of the suspect and determined that one was artificial. The officers then frisked him and removed from the waistband of his trousers a loaded pistol. Influenced by the fact that the officers obtained knowledge of the suspect’s possession of the pistol from an unidentified informant, the trial court suppressed as evidence the pistol. This court reversed, holding on the authority of United States v. Frye, supra, that there was ample justification for conducting a limited protective search for the weapon. Disposing of the contention that the officers’ information was unreliable because obtained from an unidentified informant, we said:

The credibility of a paid or professional informer may be suspect, but in our opinion the same cannot be said of a citizen reporting a crime. While the citizen here did not specifically say he had seen the pistol in Willie’s possession, such was the clear inference from his report. [United States v. Walker, supra at 378; footnote omitted.]

In the case at bar the officer was informed — as was the officer in United States v. Walker, supra — that a man, whom the informant identified, had on his person a pistol. Entering the tavern and observing a man answering the description given him by the informant, the officer by reason of his capacity had not only the right but the duty to investigate and, in the process, to determine preliminarily whether such person was armed. United States v. Walker, supra. See also United States v. Frye, supra; United States v. Dowling, D.C.App., 271 A.2d 406 (1970); Gaskins v. United States, D.C.App., 262 A.2d 810 (1970); Daniels v. United States, 129 U.S.App.D.C. 250, 393 F.2d 359 (1968). See and compare Williams v. United States, D.C.App., 287 A.2d 814 (1972); Davis v. United States, D.C.App., 284 A.2d 459 (1971); Shellie v. United States, D.C.App., 277 A.2d 288 (1971).

The trial court apparently ignored this controlling case law for, without attempting to distinguish either United States v. Frye, supra; United States v. Dowling, supra; or Gaskins v. United States, supra, it granted the motion to suppress the pistol saying:

The Government has failed to 'show any independent evidence which substantiates the officer’s testimony about the unknown informer. . . . [I]t is the opinion of this Court that the proof sufficient to sustain the Government’s position under these particular conditions, when a nameless informer is involved, must include additional information.

Because this holding flies in the face of United States v. Walker, supra,9 we cannot permit it to stand. Nor can we permit to stand the trial court’s holding in respect to the statements made by the child prior to his arrest. In this connection, it was said by the trial court:

Finding the gun in the booth where these four had been sitting confirmed the officer’s suspicions. At that time he had reason to believe that a crime had been committed and therefore had probable cause for an arrest. Before making any arrest, the officer questioned the men and after this questioning the Respondent [appellee] admitted ownership of the gun. The Court finds that this questioning was carried out without the precautionary warnings required by Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966). . . .

It is now well established that the Miranda warnings are not required as a condition precedent to on-the-scene, noncustodial interrogation. See Wells v. United States, D.C.App., 281 A.2d 226 (1971); Montgomery v. United States, D.C.App., 268 A.2d 271 (1970); Green v. United States, D.C.App., 234 A.2d 177 (1967). See also Allen v. United States, supra.

By custodial interrogation, the Supreme Court explained in Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612:

[W]e mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. . . . [Emphasis supplied; footnote omitted.]

Here, as the trial court recognized, the interrogation was addressed to “the men” rather than to the child and, in this respect, was the kind of on-the-scene group interrogation approved by this court in Wells v. United States, supra, 281 A.2d at 228. Said the court in that case:

Miranda applies only to custodial interrogation. We do not think that the fact that a person is present and is requested to be seated during the execution of a search warrant in itself creates custody. Nor do we think there was any interrogation of an accused. To ask a group of persons not in custody about the ownership of a coat is not an interrogation of a suspect as contemplated by Miranda. [Emphasis supplied; Citations omitted.]

Because the trial court erred when it suppressed as evidence the pistol and the child’s non-custodial statements, the order is vacated and the cause is remanded for further proceedings not inconsistent with this opinion.

So ordered.

1 . By D.C.Code 1973, § 23-104 (a) (1), it is provided that:

The . . . District of Columbia may appeal an order, entered before the trial of a person charged with a criminal offense, which . . . suppresses evidence . . . if the Corporation Counsel conducting the prosecution for such violation certifies . . . that . . . the evidence is a substantial proof of the charge pending against the defendant.

2 . D.C.Code 1973, § 16-2301. Definitions.

(6) The term “delinquent child” means a child who has committed a delinquent act and is in need of care or rehabilitation.

(7) The term “delinquent act” means an act designated as an offense under the law of the District of Columbia ....

3 . In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Fulwood v. Stone, 129 U.S.App.D.C. 314, 394 F.2d 939 (1967); Creek v. Stone, 126 U.S.App.D.C. 329, 379 F.2d 106 (1967).

4 . See note 2 supra.

5 . See the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 3731 (1968), and the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L.No.91-358, 84 Stat. 473.

6 . See note 1 supra.

7 . See also H.R.Rep.No.1303, 91st Cong., 2d Sess. to accompany S.Rep.No.2601, Conference Report, Statement of the Managers on the Part of the House, 219, 220 (1970).

8 . Decided after the trial court’s disposition of the case at bar, Walker followed, as imperative authority, United States v. Frye, D.C.App., 271 A.2d 788 (1970); United States v. Dowling, D.C.App., 271 A.2d 406 (1970); Gaskins v. United States, D.C.App., 262 A.2d 810 (1970).

9 . Cf. Daniels v. United States, supra.