United States v. Ricardo Cornelius Beale

445 F.2d 977

Opinions

TUTTLE, Circuit Judge

(dissenting):

With deference, I dissent from the granting of the petition for rehearing and the reversing of the earlier opinion of this court.

The extreme result of what the court advances by this judgment may well be illustrated by the statement of the principle involved in the government’s initial brief in this court. The brief there said, “It is well settled that entrance gained by fraud or other deception for the purpose of effecting an arrest is constitutionally permissible so long as force is not employed,” citing Smith v. United States, 357 F.2d 486 (5 Cir., 1966), and Leahy v. United States, 272 F.2d 487 (9 Cir., 1959). The court in its opinion to which this dissent is made, more euphemistically uses the words “deception” and “ruse.” Nevertheless, what we are dealing with is the right of the government to obtain entrance into a person’s home by the use of fraudulent tale, no matter what the dimensions of the fraud or deceit involved.

I think this court correctly held, in the opinion of January 11th, that the Supreme Court’s decision in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828, an opinion of the court to which only a single justice dissented, required us to take a second look at the issue, which we had previously decided in the Smith case against the accused.

I think it is significant to note that in Sabbath, the Court commented on the case of Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), saying that in the Miller case “the common law background of Section 3109 was extensively examined.” In the Miller case, the Court said, “The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, had declared in Section 3109 the reverence of the law for the individual’s right of privacy in his house.” (Emphasis added.)

If the basic principle is, as I deem it to be, “the reverence of the law for the individual’s right of privacy in his house,” then, it seems to me, that we should not hesitate to apply what to me appears to be a clear and logical extension of the doctrine announced in Sabbath, without requiring the indigent accused to seek an opportunity to present, by certiorari, his plea to the Supreme Court.¹

The concept, accepted by this court, in spite of the Supreme Court’s statement that we are dealing with a statute “designed to incorporate fundamental values and the ongoing development of the common law” appears to be such “grudging application” of Section 3109 as was rejected by the Court in Sabbath.

I, therefore, respectfully dissent from the judgment of the court affirming the conviction, and I would adhere to the original opinion unanimously arrived at by the court.

1 . Statistical studies show that there were entered on the Supreme Court’s npirellate dockets 1758 cases and on the miscellaneous docket 2429 cases, or a total of 4187 during tlie last court year, and that to date, during this court year, there have been filed a total of 3982 such cases.