James H. Harris v. United States

370 F.2d 477, 125 U.S. App. D.C. 231, 1966 U.S. App. LEXIS 4131

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 6, 1966
• Docket: 19256
• Status: Published

Opinions

PER CURIAM:

This appeal from a robbery conviction was ordered reheard by the court en banc, thereby vacating the earlier disposition by the panel, because it appeared to present broad issues with respect to the search of automobiles by the police under a departmental regulation addressed to the securing of the contents of impounded cars. We were variously urged by the Government to proclaim a general doctrine of the amenability of automobiles to warrantless search as instrumentalities of crime, and by the defense to declare the regulation invalid on its face. On closer examination, however, we do not think this case, at least in the posture it reaches us, presents us with such far-ranging alternatives. In particular, we are, as the trial judge said of himself, “not called upon” to deal “with the broad question of the right of'police officers to conduct searches of motor vehicles not contemporaneous with an arrest of the defendant at all times and all places.”

The car in question was observed leaving the place where the robbery occurred. It was found several hours later, and appellant was arrested as he was getting into it in front of his home. Appellant was taken promptly to the precinct police station, the arresting officer having first made a call for the police towing crane to come and take the car to the station also.¹

The arrest was made at about 1:30 P.M. At 3:00 P.M., the crane operator came into the police station and told the arresting officer that he had just placed the car on the station parking lot. He said that, although it was raining and the windows were down, he had not rolled them up to protect against the rain because he was afraid of disturbing finger prints. The arresting officer testified that he went out immediately to the car for two purposes. One was to inventory its contents as required by the regulation, and the other was to roll up the windows because it was raining. Accomplishment of the former purpose was begun by opening the door on the driver's side of the car; and a complete examination of the interior of the car was made through, and by means of, this mode of entry. Having completed this examination, the officer then went around to the other side of the car for the sole purpose of rolling up the windows. When he opened the right front door for this purpose, there came into his view a registration card which had been lying on the door jamb concealed by the closed door. This was the card of the robbery victim which had been contained in the wallet taken from him in the robbery.² It is claimed that it should have been excluded from the evidence at the trial because of the illegality of the search which disclosed it.“

We state the foregoing facts as they were found by the trial judge who heard the evidence on the motion to suppress. The matter of credibility was very much in the judge’s mind, and he adverted to it at length in his findings.³ He concluded from the facts as he found them that the officer had opened the right front door solely for a lawful purpose (¿. e., to roll up the window to protect against the rain), and that that action brought into open view a piece of incriminating evidence. There was, in his view, no search at all in relation to this particular evidence, and therefore, no Fourth Amendment issue inescapably requiring resolution. Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

We can reach such an issue only by refusing to accept the facts as they have been found by the judge who heard the evidence and who made precise and explicit findings on the basis of what he heard. Our own reading of the record does not provide us with any warrant for such a rejection. The case strikes us as something of a factual sport, but by no means an incredible one in the light of everday experience. It is, in any event, an inappropriate vehicle for appellate resolution of the large and important issues pressed upon us.

The conviction is affirmed.

1 . There is no issue before us as to the propriety of the police seizure of the ear itself. This was conceded by the defense at trial, and is unchallenged here. The officer testified that, at the scene of the arrest, he made a quick but fruitless scrutiny of the interior of the car to see if there were any weapons. He also testified that his purpose in calling the crane was to impound the car as possible evidence itself of the commission of the crime. Once impounded, his purpose in examining it further was simply to carry out his duties under the regulation applicable to all cars of which the police find themselves lawfully possessed and for which they have a responsibility. Were we compelled to come to grips with Fourth Amendment considerations in this case, this testimony might perhaps be of great relevance, at least in defining with precision such issues as the degree of contemporaneity required between arrest and search for criminal evidence, and the differences, if any, for Fourth Amendment purposes between the usual search of this nature, on the one hand, and an inventory search under a housekeeping regulation, on the other.

2 . The officer testified that, after bringing appellant out to look at the card where it lay, the card was taken up and into the station where it was placed in an envelope for delivery to the Police Property Clerk. The officer thereafter went out again to the car and completed his inventorying under the regulation by opening the trunk at the back of the ear. A day later the officer got a search warrant directed to the Police Property Clerk, and it was under this warrant that the card was yielded up for use as evidence.

3 . The trial judge participated at length in the examination of the arresting officer about the circumstances of the discovery of the evidence sought to be excluded. Indeed, after the arresting officer had completed his testimony and been excused, he was later recalled at the court’s instance in order that he might tell his story again. At the request of both sides, the court asked the questions which elicited again the officer’s detailed account of what took place in connection with the examination of the car at the police station. The court’s own characterization of the witness’s testimony is as follows:

“The Officer, I think, has been very frank in his testimony. Where there have been things that may not have been particularly helpful to the Government’s case, he has told us about those things; and I have no reason to discredit his statement as to which I don’t think there can be any possible mistake, because, as I have stated to counsel, he was asked about it twice, and he was very emphatic about it. I must conclude as a matter of fact that be opened that door simply for the purpose of operating the window, raising the mechanism so that that window might be raised.”