Lewis L. Wayne v. United States

318 F.2d 205, 115 U.S. App. D.C. 234, 1963 U.S. App. LEXIS 5686

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 4, 1963
• Docket: 16709
• Status: Published

Opinions

BURGER, Circuit Judge.

Appellant was indicted on two counts, the first for an attempted abortion terminating in death, and the second for attempted abortion. Tried before a jury, he presented no evidence and was found guilty on only the second count. He was sentenced to imprisonment for a period of 2 to 6 years. The District Judge excluded as evidence certain medications claimed to be means of inducing the abortion under a ruling in a prior trial¹ that these items were “fruit” of an unlawful entry due to policy failure to announce the purpose of their entry. Our disposition will require a more complete discussion of this issue at a later point.

The following is a summary of undisputed facts: Jean Dickerson, the deceased victim of an attempted abortion, had absented herself from her regular employment as a school teacher and from her regular place of residence for a week due to an undisclosed “illness.” The decedent and her sister called at appellant’s residence for the purpose of making arrangements to have an abortion performed on the decedent, who was pregnant and unmarried. They returned the next day carrying $400 in currency. While the decedent’s sister was present, appellant’s co-defendant Portia Watson, who was granted a severance, made all physical arrangements for the abortion procedures at appellant’s request. There was testimony that appellant instructed Portia Watson to “set him up” and that shortly thereafter she reported that she had done so. Appellant’s license as a physician had previously been revoked.

The testimony showed that appellant carried a tube of some substance into the room where decedent had been taken and returned stating that she, the “patient,” was having “good reactions.” Hearing groans from the bedroom soon after this, appellant returned to the bedroom and later emerged saying “Oh my God, I believe she’s dead.” At this point the decedent’s sister said she tried to leave the apartment but Portia Watson cried out “Catch that girl, she’s trying to get out.” The door was barred by two locks² and she was prevented from leaving. Later the decedent’s sister was able to escape but was pursued by Portia Watson, who tore the woman’s coat off in her effort to prevent flight. Evading pursuit, the sister contacted a friend who called the police.

Police testimony is that they reached the door of appellant’s apartment in response to the emergency call, knocked and called out “Police” and requested entry.^{2 3} The occupants made no response. Repeated knocking produced no response. After approximately 10 minutes, during which interval the decedent’s sister returned to the scene, the caretaker was called on to produce master keys but it developed that double locks had been installed. The police then broke down the door and entered. Inside they found appellant, Portia Watson and one Henry Lincoln Johnson, Jr., appellant’s attorney.

On the testimony offered in a pre-trial hearing, to which reference will be made later, the District Court granted the motion to suppress the medication and its container, and the cash found in the apartment. No appeal from that ruling was available to the government. Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957). The record makes it clear that the pre-trial ruling was based on Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) and that the District Court considered the command of Title 18 U.S.C. § 3109 as absolute in all circumstances. The government argued that there were exceptions to literal compliance but did not elaborate on this claim.

At the second trial now under review, appellant objected to any evidence relating to the body of the deceased girl, claiming that the favorable ruling on the other physical evidence, i. e., the tube of medication and outer box, and impounded cash, also controlled as to all other evidence found on entering the room, i. e., the victim’s body. The autopsy report and expert opinion as to cause of death, being dependent upon examination of the body, are challenged as “fruit” of an illegal entry. Essentially his claim is that the victim’s body was subject to a motion to suppress. See Killough v. United States, D.C.Cir., 1962, 114 U.S.App.D.C. 305, 315 F.2d 241.

The District Judge at the second trial ruled that the testimony of the Deputy Coroner based on his autopsy was admissible. The expert testimony of the Deputy Coroner, Dr. Whelton, who performed the offleial autopsy required by law,⁴ established (a) that the deceased was pregnant; (b) that foreign substances introduced into her body were the probable cause of death; and (c) that there were physical manifestations of an attempted abortion.

Appellant’s Contentions

Three claims are urged for reversal. Rather than attempting to restate or characterize them, we are reproducing them verbatim from appellant’s brief:

“1. Is there sufficient evidence to survive a motion for acquittal upon a charge of attempted abortion where no evidence is adduced of the use of an abortifacient or instrument, an undertaking to perform an abortion, in the absence of medical or lay opinion that an abortion was attempted, upon medical opinion which is merely consistent with some but inconsistent with other evidence and permissible inferences of innocence

“2. Is the charge of a trial court erroneous so as to merit reversal where it reviews only the evidence and inferences consistent with guilt and totally ignores testimony and reasonably permissible inferences consistent with innocence, and is otherwise perceptibly adverse to a defendant who elects not'to testify

“3. Is evidence secured from an autopsy performed by the coroner on a body the possession of which was obtained during the course of an illegal search and seizure constitutionally available after entry of an order of suppression and over objection.”

(1)

The motion for acquittal was properly denied. The evidence of the attempted abortion which resulted in the victim’s death was, of course, not that of an eyewitness. On this record there could, obviously, have been only the appellant or his co-defendant Portia Watson who could qualify as eyewitnesses. They did not testify. The prosecution’s evidence showed (a) the death of a pregnant, unmarried girl; (b) evidence she had carried $400 in cash to appellant’s apartment; (c) testimony by the sister that as she fled the apartment she saw a large quantity of paper money on a table;⁵ (d) medical evidence consistent with a recently attempted abortion; (e) opportunity of the appellant to commit the act, including direct personal contact with the decedent just before her death in a room which was under his control; (f) that appellant discussed the decedent’s “good reactions” to some treatment or medication he had administered; (g) forcible efforts to prevent flight of decedent’s sister when appellant said he “believed” the victim was dead. All this was uncontradicted. The evidence at the time of the motion for acquittal clearly presented a jury question. Thomas v. United States, 93 U.S.App.D.C. 392, 211 F.2d 45, cert. denied, 347 U.S. 969, 74 S.Ct. 780, 98 L.Ed. 1110 (1954); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).

(2)

We have carefully examined the challenged portion of the charge containing discussion of the evidence in light of appellant’s claim that it was “slanted” against him and prejudicial. However, any examination of this phase of the charge must take into account that all the evidence came from but one side, for the accused exercised his right’ to remain silent and tendered no other witnesses. To a degree, it was inherent in any discussion of the evidence that it would tend to be a discussion of the government’s evidence. However, the jury was very carefully instructed on the burden of proof and its right to pass on credibility, which in these circumstances could apply only to prosecution witnesses. At the close the jury was again instructed that if its “recollection of the testimony in any respect differs from the summary” given by the court “it is your recollection that must govern.” It can hardly be thought that the right of a trial judge to restate or summarize the evidence can be frustrated or circumscribed by a defendant’s failure to offer any evidence. We find no merit in the contentions advanced on this claim.

(3)

(a) Appellant’s third contention will be treated in two parts. The contention is that the entry of the police into his apartment, which had been found by a District Judge on a pre-trial motion to have been illegal, and the seizure of the body immediately following such illegal entry, precluded the introduction of the coroner’s testimony about the condition of the body and the cause of death. The doctrine invoked is that commonly known as the “fruit of the poisonous tree.” The government challenges the finding that the entry was illegal and argues further that, even if it was, it did not preclude the coroner from testifying.

Without now reaching the legality of the entry, we agree with the government that, in the circumstances of this case, the testimony objected to could not be considered as the “fruit of the poisonous tree.” The Supreme Court has recently had occasion to discuss and clarify this difficult doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It stated that the exclusionary rule has no application when the government obtains evidence “from an independent source.” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The Court added that the question to be asked in applying the doctrine is “ ‘whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).” Wong Sun v. United States, supra, 371 U.S. at 488, 83 S.Ct. at 417. (Emphasis added.)

It appears to us that the standards set forth in Wong Sun call for admission of the coroner’s' testimony. It is undisputed that the deceased’s sister had told the police, prior to their entry into appellant’s apartment, that her sister was there. No one seeking entry “knew” as a fact that she was dead and no one had a right to assume it was a “body,” rather than a dying or unconscious person, as the police thought. Accordingly, it is clear that this information came from an independent source, and it cannot reasonably be said that the evidence embodied in the coroner’s testimony was acquired “by exploitation of * * * [the] illegality,” see Maguire, supra, or that it can be regarded as “gained by the Government’s own wrong,” Silverthorne, supra, 251 U.S. at 392, 40 S.Ct. at 183. It was inevitable that, even had the police not entered appellant’s apartment at the time and in the manner they did, the coroner would sooner or later have been advised by the police of the information reported by the sister,⁶ would have obtained the body, and would have conducted the post mortem examination prescribed by law. See D.C.Code Ann. § 11-1203 (1961). Thus, the necessary causal relation between the illegal activity and the evidence sought to be excluded is lacking in this case.

Judge WASHINGTON considers that the discussion in the preceding pages amply justifies the admission of the coroner’s testimony, and that it is not necessary for us to pass upon the legality of the police entry, the reviewability of the pre-trial order, or the need (or not) to remand the case for further hearings on the circumstances of the entry. Accordingly, the discussion which follows reflects my own views. Judge WASHINGTON concurs in this opinion up to this point, and concurs in the affirmance of the conviction.

(b) There is an alternative basis on which the action of the District Court admitting the testimony of the Deputy Coroner can, in my view, be sustained. That alternative basis is to review, now, the validity of the pre-trial order ruling that the forcible entry into the apartment was illegal. The facts relating to the entry have been described in part under the statement of the case. For present purposes the testimony of Henry Lincoln Johnson, Jr., at the pre-trial hearing becomes pertinent. Before considering that testimony it should be noted that the pre-trial ruling was not based on an evaluation of credibility of the officers who testified that they announced “Police” but not their purpose for seeking entry. Rather the pre-trial judge assumed that their identity had been announced but that the admitted failure to announce purpose rendered their forcible entry a violation of 18 U.S.C. § 3109.

The comments of the pre-trial judge reveal that he saw no exceptions to the holding of Miller v. United States, supra, that an entry for search without a warrant must be carried out strictly in compliance with § 3109 and that no exceptions could be made. The prosecution suggested to the pre-trial judge that exceptional circumstances excused literal compliance with § 3109 but failed to develop this argument and did not point to Supreme Court utterances which tended to support the government’s position.

The requirement of notice of authority and purpose for entry is not new. The provisions of § 3109 have their roots, as Justice Brennan pointed out in the Miller opinion, in a holding more than 350 years old.⁷ Commenting on the command of Semayne’s Case that before an officer breaks in he “ought to signify the cause of his coming, and to make request to open doors * * Mr. Justice Brennan continued:

“The requirement stated in Semayne’s Case still obtains. It is reflected in 18 U.S.C. § 3109, in the statutes of a large number of States, and in the American Law Institute’s proposed Code of Criminal Procedure, § 28. It applies, as the Government here concedes, whether the arrest is to be made by virtue of a warrant, or when officers are authorized to make an arrest for a felony without a warrant. There are some state decisions holding that justification for noncompliance exists in exigent circumstances, as, for example, when the officers may in good faith believe that they or someone within are in peril of bodily harm, Read v. Case, 4 Conn. 166, or that the person to be arrested is fleeing or attempting to destroy evidence. People v. Maddox, 46 Cal.2d 301, 294 P.2d 6. (Footnotes omitted.)

* •» * * * -X-

* * * It may be that, without an express announcement of purpose, the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture. Cf. People v. Martin, 45 Cal.2d 755, 290 P.2d 855; Wilgus, Arrest Without a Warrant, 22 Mich. L.Rev. 541, 798, 802 (1924). * * * (Footnotes omitted.)” Miller v. United States, 357 U.S. at 308-309, 310, 78 S.Ct. at 1195-1196.

In the Miller opinion the Court was careful to point out that “The Government makes no claim here of the existence of circumstances excusing compliance.” Unless § 3109 is to be applied to the point of utter absurdity the courts are warranted, by what the Supreme Court has said, in assuming that circumstances may arise where because of an urgent need or because announcement would be a “useless gesture,” literal compliance with § 3109 is not always required. To say this is to do no more than repeat what is axiomatic — that the law does not require “useless gestures.”

Against this background I turn to a more detailed examination of the facts leading up to the entry, the facts known to police, the facts known to the occupants all of which are urged by- the government as showing an exigent situation excusing literal compliance with § 3109.

Henry Lincoln Johnson, Jr., the attorney who was found in the apartment, testified on the pre-trial motion that he was called to the apartment after the deceased girl’s sister had fled; that he saw appellant “in a state of collapse” and a woman lying on a bed. While there and before police arrived Johnson said there was conversation about calling a doctor or an undertaker, thus indicating that even while police were knocking at the door there was no certainty the woman was dead. He testified he was informed either by appellant or by Portia Watson, that “the latter had tried to stop the girl [sister of the victim] from leaving but that she broke away and ran out in an excited condition from the place” 15 or 20 minutes before he arrived. He conceded the girl had left “against Portia Watson’s will.” Johnson testified he heard voices and “some commotion” outside the door and knocking at the door; that he told Portia Watson “if the police came to let them in if they announced who they were and what they wanted.” He also testified “the knocking increased in tempo and then the door broke on in.” Johnson said he heard no one announce that police were at the door. He testified he was in the apartment approximately 12 minutes before police arrived. He said he did not suspect that the people outside the door might be police and “I didn’t think there was any occasion for the police. * * * I didn’t have the slightest idea * * * that the police had any connection with it.” However he conceded that he passed a police cruiser standing in the driveway as he entered the apartment “which I didn’t connect with anything.” He also said he heard someone trying to open the door with a key but did not ask who was trying to get in or who was knocking. Johnson admitted he knew appellant prior to this event and had defended him in other abortion cases. He said he thought that the knocking continued for about 3% minutes.

A police officer testified that the police cruiser received a radio message that there was “an unconscious person in-apartment 614 of the Rhode Island Avenue Plaza,” that they responded at once and found that the apartment number was wrong and no unconscious person was in 614; that they were directed to-618, as an apartment occupied by a doctor. There they said they knocked repeatedly and identified themselves as police officers in a “loud voice.” Other officers from a second police cruiser joined them. Testimony of officers was that they did not break in until about 10 minutes after knocking and calling “Police.”

The government is free, of course, to attack the pre-trial ruling that the forcible entry by police was a violation of 18 U.S.C. § 3109 since this is the first opportunity it has had to raise the point. Carroll v. United States, supra. The-government’s contentions are (a) that an exigency existed justifying entry without a warrant because the officers had only a report of an “unconscious woman” and (b) that a statement of purpose was not imperative because under all the circumstances it would have been a “useless gesture.” Miller v. United States, supra, 357 U.S. at 308-310, 78 S.Ct. at 1195-1196; People v. Martin, 45 Cal.2d 755, 290 P.2d 855. See Wilgus, Arrest Without a Warrant, 22 Mich.L. Rev. 541, 798, 802 (1924).

The appraisal of exigent circumstances surrounding execution of search warrants or forcible entries without a search warrant presents difficult and delicate problems. These cases do not arise in the calm which pervades a courtroom or library. They are rarely if ever seen by courts except in cases where criminal activity has been uncovered by the challenged police actions. They are not matters resolved by meditation and refleetion of the participants. The events are likely to be emotion-charged, filled with tension, and frequently attended by grave risks. Neither the Constitution, statutes or judicial decisions have made the home inviolable in an absolute sense. Collectively they have surrounded the home with great protection but protection which is qualified by the needs of ordered liberty in a civilized society.

Breaking into a home by force is not illegal if it is reasonable in the circumstances. The standards controlling a breaking in without a warrant are those prescribed in § 3109. Miller v. United States, supra. But a warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. Fires or dead bodies are reported to police by cranks where no fires or bodies are to be found. Acting in response to reports of “dead bodies,” the police may find the “bodies” to be common drunks, diabetics in shock, or distressed cardiac patients. But the business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process. Even the apparently dead often are saved by swift police response. A myriad of circumstances could fall within the terms “exigent circumstances” referred to in Miller v. United States, supra, e. g., smoke coming out a window or under a door, the sound of gunfire in a house, threats from the inside to shoot through the door at police, reasonable grounds to believe an injured or seriously ill person is being held within.

Section 3109 enters this case because the appellant successfully moved in the District Court to suppress evidence. But compliance with § 3109 is not the only source of authority by which police could lawfully enter private quarters. As I have already suggested, evidence of a fire or of escaping gas would warrant public authority to enter by any available means if there was not a prompt response to knocking. That such an entry would be an intrusion is undoubted but here we reach the balancing of interests and needs. When policemen, firemen or other public officers are confronted with evidence which would lead a prudent and reasonable official to see a need to act to protect life or property, they are authorized to act on that information, even if ultimately found erroneous. We need not resort to § 3109 as such to justify entry in those circumstances.

Here two streams of potential authority for entry exist and at a point they merge. When the police first arrived on the scene they had only the report of an “unconscious woman.” At a point after the victim’s sister arrived there may well have developed grounds for entry other than a civil emergency, i. e., reasonable grounds to believe a criminal act had been committed in the apartment. The record is confusing partly because a situation of this kind is filled with confusion and ambiguity. If we could expect that patrolmen from police cruisers would be able to pinpoint the instant when they stopped treating this as a civil emergency, if they did, and began thinking of it in criminal terms, we would be asking them to resolve, under pressure and in minutes, a most subtle and delicate legal and constitutional problem on which, as we now demonstrate, judges cannot agree after months of study and deliberation.

Even if we assume that police entry was pursuant to a civil emergency, can it be thought that what they find inside is to be suppressed? Are we to say that police or firemen may enter to apply a tourniquet or resuscitator, for example, but may not act on evidence of a crime which they then observe incidentally without any search?

In the instant case police received a report which, if true, no reasonable mind could view as other than one indicating a grave emergency, for the- cruising police were instructed to check on a report of an “unconscious woman” and could not assume the woman was dead. Even the “disbarred” doctor had not said the victim was in fact dead, but that he thought she was dead. Police response was indeed swift and were they to have paused for a warrant with the risk that the “unconscious woman” might die while papers were being drawn they could surely merit censure.

Once at the door of a place to be entered for arrest or search the law indeed commands that police state their identity and purpose. Here the record shows, beyond dispute, that police were pounding on the door demanding entry with what appellant’s own lawyer in the apartment called “increasing tempo.” It is beyond question that the occupant of a house has a right to know why the police seek entry. But the law does not require futile, useless things to be done. If stating the purpose of the police to the occupant would have been a “useless gesture”⁸ the law will make an obviously common sense exception and dispense with telling .an occupant what he already knows. We must therefore ask whether in this case a statement by police that “We are checking a report of a dead, dying or unconscious woman” would have been a “useless gesture” or whether on the other hand that was reasonably called for to allow the appellant an opportunity to admit the police.’ In short, the question is whether the occupants knew the purpose of police presence and their reason for desiring entry.

To answer this we need to look to the •setting and the circumstances of the moment. In the room was a “disbarred” ■doctor who had performed or attempted to perform an abortion on a patient who he then thought might be dead. With him was the woman who aided him in the criminal acts performed. By an unusual sequence of events the appellant, although described as in a state of collapse by his attorney, had arranged to have that attorney present. We can do no more than speculate as to what went on in the mind of that attorney as he heard a pounding at the door within minutes after he had seen a police cruiser standing at the doorway as he entered the building. There is no adequate explanation why an officer of the courts would fail to admit the police, since the purpose of their prolonged knocking with “increasing tempo,” to use his own words, surely could not have eluded a lawyer experienced in such matters.⁹ Whether he advised his client to refuse entry, thus laying a foundation for the arguments which later he was personally to urge upon us, we cannot know. But analysis of these facts can lead to no conclusions except: (a) appellant and other occupants knew the purpose as well as identity of those demanding entry; (b) all occupants had more than adequate opportunity to ask the police purpose if indeed they did not know it; (c) with a dead or dying woman in an adjacent room, appellant, as a former physician, must be presumed to have known it was his affirmative duty to report a death to police or seek emergency aid if there was doubt as to death; (d) with an attorney present the latter at least must have known the police purpose.

I can see no escape from the logic of the Government’s argument that the police had a right — if not a duty — to assume that, absent a reply to prolonged knocking, (a) that the occupants may have fled leaving an unconscious, dying, or dead person alone or (b) that the occupants were concealing a dead body or (c) refusing to permit access to an unconscious person whose life might be endangered by delay. It would be extraordinarily difficult to conjure a more exigent situation than this, or one in which further unilateral conversation through the door would be more absurd and more plainly a “useless gesture.”

I do not think we should adopt the “sporting contest” concept of criminal justice in which form governs substance. Form is of genuine importance in the law, for the law is form in a sense, but there are limits beyond which I will not go. I reject the idea that society can be frustrated and denied reasonable protection by mechanical adherence to formalism. Police should not be required to lay siege to an apartment to await a search warrant while a life may be at stake. For my part I would not gamble the possibility of saving the “unconscious woman” on the chance that the drunken ex-doctor and the hysterical sister had made an accurate diagnosis of death. Human life is more important than the statement of the police purpose to people who could not rationally have had any doubt about that purpose.

My view of the case affords this alternative ground to affirm the action of the District Court in admitting the Deputy Coroner’s testimony as to the autopsy performed on the victim and as to the cause of death, apart from the grounds discussed under 3(a) above.

Affirmed.

1 . Appellant was originally charged and tried for second degree murder and attempted abortion. A jury returned a verdict of guilty on both counts. The Distriet Judge granted a new trial due to bis own view that his instructions may have been erroneous, because of an inadvertent reference to manslaughter.

2 . This may explain why the caretaker could not open the door from the outside at police request.

3 . Compare the testimony of attorney Johnson at the pre-trial motion, discussed later in this opinion.

4 . D.C.Code Ann. § 11-1203 (1961).

5 . Under the pre-trial suppression order this money, which was seized by police, was returned to Portia Watson who claimed it.

6 . Rules and Regulations of the Metropolitan Police, Chapter II, Section 55, p. 33, Chapter XXIV, Section 12, p. 104a (eff. Nov. 1948).

7 . Semayne’s Case, 50 Co.Rep. 91a, 11 E.R.C. 029, 77 Eng.Repr. 194.

8 . Miller v. United States, 357 U.S. 301, 309-310, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958).

9 . The presence of a lawyer in the apartment is relevant to an evaluation of the need to inform occupants of police purpose, especially since the lawyer admitted that when he entered the building the .police cruiser bad already arrived. Presumably the officers may then have been engaged in the fruitless search for the “unconscious woman” at the wrong apartment. Otherwise the conduct of the attorney is not now in question. Appropriate inquiry, if that is indicated, may be made by the District Court and by this court after this litigation has been terminated.