Samuel Wrightson v. United States

222 F.2d 556, 95 U.S. App. D.C. 390, 1955 U.S. App. LEXIS 3855

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 10, 1955
• Docket: 12038
• Status: Published

Opinions

PRETTYMAN, Circuit Judge.

Appellant Wrightson was indicted, tried and convicted with three other accused persons for an armed robbery. At the trial a box, a gun, and some cartridges were offered in evidence and admitted over objection. The ground of the objection was that the evidence was .seized in an illegal search.

Police officers arrested Wrightson in his apartment at about five-thirty o’clock ■on the morning of July 29, 1953. The robbery for which he was ultimately indicted had occurred July 17, 1953, twelve days prior to the a-rrest. The officers had .neither an arrest warrant nor a search warrant. The testimony as to why they were at Wrightson’s apartment early in the morning almost two weeks after the robbery, was in answers to two questions asked by the prosecuting attorney. The first question, put to one of the arresting officers, was, “And as a result of your investigation of that alleged robbery did there come a time when you arrested the defendant Wrightson?”, to which the officer replied, “I did, sir.” In the second question Wrightson was asked, “Did he [the officer] tell you where he got the information that you were involved?”, and he replied, “No, sir; he said he had an anonymous tip.” ¹

The officers did not testify on direct examination as to how they obtained entrance to the apartment, but on cross examination the following question was put and answer given:

“Q. Did you not gain admission in the apartment by knocking on the door, stating that there was a fight in the hall, there’s blood all over the place, and this is the police and we are investigating, open the door, or we will knock it down ?

“A. I did, sir.”

Several people were in the room. The officer described the arrest thus: “I went to each one and asked him his name, and when I came to the defendant Wrightson he said his name was Sam Wrightson. I placed him under arrest at that time.” Wrightson protested there had not been any fight, and the officer told him he was being arrested “for investigation of robbery.” Then the officer observed on a bureau the box in question with some cartridges and, upon Wrightson’s information, found the gun under a pillow on the bed.

The Government says Wright-son • never, in the trial court, attacked the legality of the arrest. But he obviously rested his attack upon the search in major part upon the illegality of the arrest, and, moreover, at one point in á colloquy with the prosecutor, his counsel specifically said the point was that if the arrest was illegal the search was illegal.

A police officer may arrest for a felony without a warrant, if he has probable cause to believe that a felony has been committed and that the arrested person committed it.² This record does not show that the officers had any cause,³ probable or otherwise, to believe that Wrightson had committed the robbery. Maybe they had ample cause to believe it, but they did not reveal the cause. After reading the entire transcript we do not know why the officers were at Wrightson’s apartment, especially at such an hour and so many days after the robbery, or why the officer arrested Wrightson as soon as he learned his name. The officer, by simply adopting, without more, the prosecutor’s suggestion that “as a result of your investigation” the arrest was made, took to himself the authority to decide the sufficiency of cause for belief of Wrightson’s guilt. The officer had no such power.

The point here is that at the trial, when the search and the arrest were under attack as illegal, the officer and the prosecutor chose not to reveal what cause there was for the arrest and thus not to support its legality. There is law which governs arrest, that law is binding upon police officers, and persons arrested have a right to invoke it.

It is perfectly true that after the arrest Wrightson was identified by the victim of the robbery and confessions were presented and received. But the tendency of police officers to arrest people without warrants and without probable cause is a matter of vast public importance, and it has been of such importance since Colonial days. Courts cannot put a stamp of approval upon actions of the police when the officers, challenged by an accused, fail or refuse to demonstrate compliance with the rules which circumscribe their authority. Certainly the police have been warned enough in these respects, by the Supreme Court of the United States,⁴ by this court,⁵ *and by many other courts.⁶

An officer must show “probable cause” to get a warrant from a magistrate, and he must have “probable cause” to make an arrest without a warrant. •The Rules of Criminal Procedure provide for the issuance of warrants. They may be issued upon a complaint, an indictment, or an information.⁷ For a warrant to b.e issued upon a complaint probable cause must appear from the complaint,⁸ and, of course, probable cause is inherent in an indictment or information.

We are here at the very heart of due process of law and, more directly, at the essence of the Fourth Amendment. Justification for a search without a warrant is here sought on the ground that it was incidental to an arrest without a warrant. When the arrest is held legal the incidental search becomes legal. When the arrest is stripped of necessity for probable cause, the search is stripped of the same necessity. But the Fourth Amendment imposes specific requirements upon search warrants. “ * * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation * * That requirement was regarded by the people of that day as so essential that ratification of the Constitution was conditioned upon its inclusion in a formal pronouncement by way of an Amendment to the document itself. To hold that a search warrant cannot issue except upon probable cause shown under oath, but that a search can be made without any factual demonstration of probable cause so long as it is made without a warrant, would be a deliberate circumvention of the constitutional prohibition. We cannot lightly toss away that safeguard by the roundabout device of removing the necessity for a showing of probable cause upon an arrest without a warrant and letting the corollary search without a warrant follow as of course. Moreover, that the Fourth Amendment covers warrants of arrest is established.⁹ The Amendment protects the people against the seizure of their persons as well as against the search of their houses.

The forefathers had reason for all this circumscription of the power to search houses and to seize people. Such searches and seizures are the embryo of tyranny, and they well knew it. Once those .safeguards are gone, the supremacy of force is complete, potentially even if not presently factually.

Mr. Justice Jackson, writing for the Court in United States v. Di Re,¹⁰ said this:

“The Government’s last resort in support of the arrest is to reason from the fruits of the search to the conclusion that the officer’s knowledge at the time gave them grounds for it. We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.”

And further he said:

“We meet in this case, as in many, the appeal to necessity. It is said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment. Taking the law as it has been given to us, this arrest and search were beyond the lawful authority of those who executed them. The conviction based on evidence so obtained cannot stand.” ¹¹

The requirement of "probable cause” for action without a warrant is surely no less exacting than is the necessity for “probable cause” for the issuance of a warrant. But, if officers can arrest without a warrant and never be required to disclose the facts upon which they based their belief of probable cause — if, in other words, they have an untouchable power to arrest without a warrant,— why would they ever bother to get a warrant? And the same obvious conclusion follows if the courts, when an arrest is attacked as illegal, will assume, without facts, that an arrest without a warrant was for probable cause. To strike down all factual requirements in respect to probable cause for arrests without a warrant, while maintaining them for the issuance of a warrant, would be to blast one of the support columns of justice by law.

All these considerations are magnified and intensified in the case at bar by the facts that the officers, without a warrant, demanded admittance to a residence at five-thirty in the morning twelve days after the alleged offense.

In respect to two crucial issues our dissenting judge rests his opinion upon these assumptions: He assumes, without facts or statements in the record, that the officers would not have been at Wrightson’s apartment or have arrested him without a warrant unless they had had probable causé to believe he had committed a felony;¹² and he assumes conclusively that this trial judge would not have committed an érro'r of law. We cannot accept or proceed upon either of those assumptions. We are here for the purpose of ascertaining ánd correcting through painstaking study errors which naturally and inevitably occur in the pressure of the trial room; and this is so even if the so-called “errors” lie only in differences of opinion. We have that function, and that duty. “Constitutional provisions for the security of person and property are to be liberally construed, and ‘it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.’ ”¹³

In the case at bar the' arrest cannot stand under attack in the absence of any factual showing that the officers at the time of the arrest had probable cause to believe that. Wrightson had committed the crime. Since the arrest cannot stand, the search, incidental to it and without a warrant, also falls.

We come next to the Government’s contention that the objection to the admission of the evidence in dispute came too late under Rule 41(e) of the Federal Rules of Criminal Procedure. The trial court correctly interpreted the rule as providing that a motion to suppress shall be made before trial but as also giving the court a discretion to entertain it at the trial. Our question is whether in disposing of Wrightson’s objection at the trial the court declined to entertain it or entertained and denied it. The following are the court’s statements, with emphasis supplied to the key phrases:

“The Court: The rules provide . for making a motion to suppress.

“Mr. Conn: I know that.

“The Court: And if a motion to-suppress is not made it is in the discretion of the court whether or not to entertain an objection at the trial. ******

“By the Court:

“Q. Did you recover this .box in Wrightson’s apartment at the time. you arrested him there ?

“A. I did, Your Honor.

“The Court: Very well. 7 will overrule the objection because the-, search was incidental to the arrest and therefore is legal. * * * * * *

“Mr. Conn: To preserve the record on my objection to any of these things later being introduced in. evidence.

“The Court: I am going to exclude this line of examination because the rules provide that any such objection as that must be made before the trial by a motion to suppress. No such motion was made.

“In addition to that I have already ruled, irrespective of that, that a search of premises where an arrest is made may be made incidental to the arrest, in connection therewith.

“And I may remind counsel of the decision of the Supreme Court in the Harris Case [Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399] and the Rabinowitz case [United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653] that,as a rule, even if there is a valid objection, which I hold that there is not, it should have been raised by a motion prior to the trial, under Rule 41 of the Federal Rules of Criminal procedure, but that perhaps becomes academic because I hold there was no illegality in the search. * * * * «•

“The Court: In any event I hold that the search was legal. I would not sacrifice anyone’s rights because of a technical violation of the rules.

“Mr. Conn: I know you wouldn’t.

“The Court: If I thought the evidence was illegally obtained I would exclude it whether the motion was made or not.

“Mr. Conn: That I know, Your Honor.

“The Court: But I hold it was legally obtained.”

It is clear from the foregoing that the trial court entertained the objection and overruled it, holding on the merits of the objection that the search was legal because incidental to an arrest.¹⁴ Under these circumstances we must deal with that ruling as the trial court made it, and we conclude the ruling as made upon the record then before the court was erroneous.

One further observation might be made. Our dissenting brother seems to intimate that in any event guilt is clear and the disputed evidence is inconsequential. We'are not dealing with a mere error of law occurring in the course of trial and which can be disregarded as harmless. The .appellant invoked a constitutional right, and we are dealing with the constitutional question. But even as to an erroneous instruction the Supreme Court has given us strict directions. In Bollenbach v. United States,¹⁵ in response to a contention that the evidence of guilt was abundant and that therefore error in the court’s charge to the jury was not ground for reversal of the conviction, the Court said:

“ * * * it may not be amiss to remind that the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials in the federal courts.

“ * * * All law is technical if viewed solely from concern for punishing crime without heeding the mode by which it is accomplished. The ‘technical errors’ against which Congress protected jury verdicts are of the kind which led some judges to trivialize law by giving all legal prescriptions equal potency. See Taft, Administration of Criminal Law (1905) 15 Yale L.J. 1, 15. Deviations from formal correctness do not touch the substance of the standards by which guilt is determined in our courts, and it is these that Congress rendered harmless. Bruno v. United States, 308 U.S. 287, 293-294 [60 S.Ct. 198, 84 L.Ed. 257]; Weiler v. United States, 323 U.S. 606, 611 [65 S.Ct. 548, 89 L.Ed. 495]. From presuming too often all errors to be ‘prejudicial,’ the judicial pendulum need not swing to presuming all errors to be ‘harmless’ if only the appellate court is left without doubt that one who claims its corrective process is, after all, guilty. In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, for ascertainment of guilt by a jury under appropriate judicial guidance, however cumbersome that process may be.”

Reversed and remanded for a new trial.

1 . Another vague reference by one of the officers bears remotely upon the question. When ashed if he did not break up the furniture, etc., the officer said he was looking for Government checks — “I had information that the Government checks were in that apartment,”

2 . Shettel v. United States, 72 App.D.C. 250, 113 F.2d 34 (D.C.Cir.1940).

3 . Wrightson’s suggestion of “an anonymous tip” was (1) hearsay and (2) not sufficient. Contee v. United States, 94 U.S.App.D.C. -, 215 F.2d 324, 327 (D.C.Cir.1954).

4 . E. g., Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948).

5 . E. g., Maghan v. Jerome, 67 App.D.C. 9, 88 F.2d 1001 (1937); Ellison v. United States, 93 U.S.App.D.C. 1, 206 F.2d 476 (1953); Mills v. United States, 90 U.S.App.D.C. 365, 196 F.2d 600 (1952), certiorari denied, 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643 (1952); Accarino v. United States, 85 U.S.App.D.C. 395, 179 F.2d 456 (1949); Gatewood v. United States, 93 U.S.App.D.C. 226, 209 F.2d 789 (1953); and see Shettel v. United States, supra note 2.

6 . E. g., Bushardt v. United Inv. Co., 121 S.C. 324, 113 S.E. 637, 35 A.L.R. 637 (1922); State v. Williams, 328 Mo. 627, 14 S.W.2d 434 (1929); State ex rel. Fong v. Superior Court, 29 Wash.2d 601, 188 P.2d 125 (1948), certiorari denied, 337 U.S. 956, 69 S.Ct. 1525, 93 L.Ed. 1755 (1949); State, for Use of Brown v. Spangler, 120 W.Va. 72, 197 S.E. 360 (1938); Wiley v. State, 19 Ariz. 346, 170 P. 869, L.R.A.1918D, 373 (1918); Kalkanes v. Willestoft, 13 Wash.2d 127, 124 P.2d 219 (1942).

7 . Fed.R.Crim.P. 4(a), 9(a), 18 U.S.C.A.

8 . Id., 4 (a).

9 . See, e. g., Albrecht v. United States, 273 U.S. 1, 5, 47 S.Ct. 250, 71 L.Ed. 505 (1927); McGrain v. Daugherty, 273 U.S. 135, 156, 47 S.Ct. 319, 71 L.Ed. 580 (1927).

10 . 332 U.S. 581, 595, 68 S.Ct. 222, 228, 92 L.Ed. 210 (1948).

11 . Ibid.

12 . Even as to the sole testimony of an officer quoted in the dissent, that the officer “had information” as to the Government checks, the dissenting opinion assumes without evidence that the “information” was reliable within the requirements established by many cases. For example, see Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Husty v. United States, 282 U.S. 694, 700, 51 S.Ct. 240, 75 L.Ed. 629(1931); Worthington v. United States, 166 F.2d 557 (6 Cir. 1948); and this court’s opinion in Contee v. United States, supra note 3.

13 . Byars v. United States, 273 U.S. 28, 32, 47 S.Ct. 248, 249, 71 L.Ed. 520 (1927).

14 . The court nowhere specifically held the arrest to be legal but apparently assumed it.

15 . 326 U.S. 607, 614-615, 66 S.Ct. 402, 406, 00 L.Ed. 350 (1946).