John J. Rigby v. United States

D.C. Circuit

John J. Rigby v. United States

247 F.2d 584, 101 U.S. App. D.C. 178, 1957 U.S. App. LEXIS 4663

CourtCourt of Appeals for the D.C. Circuit

DecidedJuly 11, 1957

Docket13840_1

StatusPublished

Cited by12 cases

This text of 247 F.2d 584 (John J. Rigby v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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John J. Rigby v. United States, 247 F.2d 584, 101 U.S. App. D.C. 178, 1957 U.S. App. LEXIS 4663 (D.C. Cir. 1957).

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Opinion

DANAHER, Circuit Judge.

Appellant charges that the District Court erred in denying his motion to suppress the use against him of certain evidence, seized from his home. He had alleged that F.B.I. agents, without a search warrant and without valid consent, had entered his apartment on June 27, 1956, while seeking the effects of one Accardo. 1 The latter had been arrested on a fugitive warrant while on the street, outside of the premises where Rigby’s apartment was located. Next day, upon learning of the arrest of Accardo, Metropolitan Police went to the F.B.I. office and examined two suitcases, said by Mrs. Rigby to have been the property of Accardo. Recognizing the contents as property said to have been stolen, the police had ample opportunity to obtain a search warrant, but failed to do so. 2 Instead, they went to and entered Rigby’s apartment, and searched for and seized additional items said to have been stolen. Indictments followed, and Rigby and Accardo were convicted.

Although the federal agents were present in court at the time of the hearing on the motion, they were not called to testify as to the circumstances preceding and associated with their entry into Rig-by’s apartment. One agent took the stand but was excused without being questioned on the point. The Government, apparently having concluded that Accardo lacked standing to challenge the entry and search by the F.B.I. agents, of *585 fered no evidence whatever as to the appellant’s waiver of his Fourth Amendment rights.

Quite apart from the burden normally devolving upon the accused to demonstrate alleged illegality in the procurement of evidence, 3 we have pointed out that if the Government relies upon consent and alleges the absence of intimidation and duress, “it has the burden of convincing the court that they are in fact absent.” 4 Here, neither by testimony nor by affidavit, did the Government establish true consent, free of duress and coercion, in refutation of Rig-by’s claims. Absent such a showing, “we must hold that there was no consent and that the search and seizure [by the F.B.I. agents] were not permissible.” 5 Since no independent basis has been demonstrated for the June 28 police search without a warrant, it follows that Rig-by’s motion to suppress should have been granted.

Reversed.

WILBUR K. MILLER, Circuit Judge, dissents.

1

. Accardo v. United States, 1957, 100 U.S. App.D.C.-, 247 F.2d 568.

2

. Id. Accardo had expressly disclaimed ownership of the stolen property. When arrested he was wearing a diamond ring which had been stolen from the home of one Bauman. Police procured a search warrant for the purpose of picking up the ring from the police property clerk, and it was later identified at the trial as the property of a Mrs. Davis, employee at the Bauman home. No evidence was adduced linking Bigby with the theft of the ring.

3

. Nardone v. United States, 1939, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307.

4

. Judd v. United States, 1951, 89 U.S. App.D.C. 64, 66, 190 E.2d 649, 651.

5

. Id., 89 U.S.App.D.C. at page 67, 190 E. 2d at page 652; cf. Higgins v. United States, 1954, 93 U.S.App.D.C. 340, 209 F.2d 819.

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DANAHER, Circuit Judge.

Appellant charges that the District Court erred in denying his motion to suppress the use against him of certain evidence, seized from his home. He had alleged that F.B.I. agents, without a search warrant and without valid consent, had entered his apartment on June 27, 1956, while seeking the effects of one Accardo. 1 The latter had been arrested on a fugitive warrant while on the street, outside of the premises where Rigby’s apartment was located. Next day, upon learning of the arrest of Accardo, Metropolitan Police went to the F.B.I. office and examined two suitcases, said by Mrs. Rigby to have been the property of Accardo. Recognizing the contents as property said to have been stolen, the police had ample opportunity to obtain a search warrant, but failed to do so. 2 Instead, they went to and entered Rigby’s apartment, and searched for and seized additional items said to have been stolen. Indictments followed, and Rigby and Accardo were convicted.

Although the federal agents were present in court at the time of the hearing on the motion, they were not called to testify as to the circumstances preceding and associated with their entry into Rig-by’s apartment. One agent took the stand but was excused without being questioned on the point. The Government, apparently having concluded that Accardo lacked standing to challenge the entry and search by the F.B.I. agents, of *585 fered no evidence whatever as to the appellant’s waiver of his Fourth Amendment rights.

Quite apart from the burden normally devolving upon the accused to demonstrate alleged illegality in the procurement of evidence, 3 we have pointed out that if the Government relies upon consent and alleges the absence of intimidation and duress, “it has the burden of convincing the court that they are in fact absent.” 4 Here, neither by testimony nor by affidavit, did the Government establish true consent, free of duress and coercion, in refutation of Rig-by’s claims. Absent such a showing, “we must hold that there was no consent and that the search and seizure [by the F.B.I. agents] were not permissible.” 5 Since no independent basis has been demonstrated for the June 28 police search without a warrant, it follows that Rig-by’s motion to suppress should have been granted.

Reversed.

WILBUR K. MILLER, Circuit Judge, dissents.

1

. Accardo v. United States, 1957, 100 U.S. App.D.C.-, 247 F.2d 568.

2

. Id. Accardo had expressly disclaimed ownership of the stolen property. When arrested he was wearing a diamond ring which had been stolen from the home of one Bauman. Police procured a search warrant for the purpose of picking up the ring from the police property clerk, and it was later identified at the trial as the property of a Mrs. Davis, employee at the Bauman home. No evidence was adduced linking Bigby with the theft of the ring.

3

. Nardone v. United States, 1939, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307.

4

. Judd v. United States, 1951, 89 U.S. App.D.C. 64, 66, 190 E.2d 649, 651.

5

. Id., 89 U.S.App.D.C. at page 67, 190 E. 2d at page 652; cf. Higgins v. United States, 1954, 93 U.S.App.D.C. 340, 209 F.2d 819.

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247 F.2d 584, 101 U.S. App. D.C. 178, 1957 U.S. App. LEXIS 4663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-j-rigby-v-united-states-cadc-1957.

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