The opinion of the court was delivered by: HOLTZOFF
On the eve of the third trial of this case in which the defendant is charged with murder in the first degree, the defendant has made a motion to suppress certain evidence, consisting of pair of trousers and a shirt belonging to the defendant and obtained by the police from him.
The first trial concluded with a disagreement of the jury. The second trial resulted in a conviction of murder in the first degree. The conviction was reversed on the ground that a written confession received in evidence should not have been admitted at the trial, 98 U.S.App.D.C. 221, 234 F.2d 42. The Court of Appeals reached the conclusion that the police made an error in calculating the time at which the defendant should have been brought before a committing magistrate and that the confession was obtained after the time at which the Court of Appeals held the defendant should have been arraigned.
A preliminary question arises whether by not making this motion prior to the first or even the second trial, the defendant has waived his right to do so at this time. No doubt the reason why the motion is now made for the first time is that there has been a change of counsel. The Court has appointed new counsel to represent the defendant at the third trial whose resourcefulness has developed this point. The Court is of the opinion that after a conviction is reversed, all of the rights that the defendant originally held are reinstated and that consequently the fact that this motion was not made prior to the first or even prior to the second trial does not bar him from presenting it at this time. Consequently, the Court will entertain and pass upon the merits of the motion.
A thoughtful and reflective observer. of our criminal procedure might indeed wonder why so much time and energy is devoted to purely tangential matters, that have no bearing upon the question that is really in issue, namely, the guilt or innocence of the defendant. A person not immersed in the day-to-day details of the administration of justice and being, so to speak, able to see the forest without his vision being obscured by the trees might well ask himself that question. Nevertheless, in view of the state of the authorities in this Circuit, it is a proper function of counsel to interpose objections of the kind that are presented by this motion and it is the duty of the Court to consider them seriously and fully.
A brief summary of some of the factual background is necessary to an understanding of the points to be determined. The defendant was arrested about 6:40 P.M. on July 17, 1953, at his home and was taken to Police Headquarters. He was intermittently questioned during the evening and during the night and, finally, between 3 and 4 o'clock in the morning, he made an oral confession, which he repeated again shortly after 8 o'clock in the morning. Later in the morning, he was taken to the premises where the murder involved in this case took place, a building known as Scott's Hotel, and he did what is called in common parlance 'reenact the crime', namely, he pointed out visually the various steps that he took and the various places that he passed through.
The defendant was then taken to the premises occupied by him. These premises consisted of a room in an apartment. The police and the defendant were admitted to the apartment by the landlady. They went to his room. One of the police officers asked the defendant to get and turn over to him the trousers and the shirt, which the defendant did. All this happened after 10 o'clock in the morning, and the defendant was then returned to police headquarters and made a written confession. His arraignment before a magistrate did not take place until after that was done.
So far, there is no essential dispute between the police and the defendant as to what occurred. The defendant, however, testified on this motion that the reason why he turned over the trousers and the shirt to the police was that he was afraid that if he did not do so he might have been beaten. There was no claim that he was threatened in any way. This fear, if it did exist, evolved out of the defendant's own consciousness. We have only his own statement to that effect since there is no surrounding circumstance indicating that there was reason for his fear.
It is claimed by defense counsel that the manner in which the trousers and the shirt were obtained constituted a violation of the Fourth Amendment and was an unlawful search and seizure. This is the principal objection, the validity of which the Court must determine.
It must be observed from the foregoing narrative of the pertinent facts that there was no search in this case. The Fourth Amendment applies to searches and seizures. The history of the Fourth Amendment clearly shows that the Founding Fathers were aiming at the evil consisting of oppressive exploratory domiciliary searches, which had been carried on both in England and in the colonies prior to the American Revolution. The Fourth Amendment, however, has not been limited to that situation by the courts. On the basis of the authorities, this Court is of the opinion that the phrase in the Fourth Amendment 'searches and seizures' must be construed both in the conjunctive and in the disjunctive, namely, the Fourth Amendment applies to a search not followed by a seizure, to a search followed by a seizure, and to a seizure not preceded by a search. The seizure involved in this case was of a kind that required a search warrant, since it was not incidental to an arrest and was not made in the premises and at the time when the arrest was made. The Government recognizes this situation and contends that the necessity of a search warrant was waived by the defendant by his consenting to the seizure.
The Court is of the opinion, on the foregoing facts, that there was a valid consent to the seizure and that this consent waived the right of the defendant to have no seizure made without a search warrant. The question is one of fact. Authorities on the point are not necessarily helpful and certainly are not determinative. Nevertheless, some assistance may be gathered from the cases on which the defendant relies.
The two principal cases cited by the defendant are Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649, and Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819. In each of these cases the search and seizure involved was held to be without the defendant's consent on the theory that the alleged consent had been obtained involuntarily. Each of these two cases, however, involved an entirely different situation from that presented in the case at bar.
In both the Judd and the Higgins cases, the alleged consent was to a general search of the defendant's premises. The presence of contraband articles in the premises was unknown and the search was of an exploratory nature. The Court of Appeals held that, under the specific facts surrounding the giving of the consent in each of these two cases, the consent could not be deemed voluntary although in the Judd case one of the judges dissented.
By contrast, in the case at bar, the defendant made a confession and informed the police that two articles that might be of importance were in his possession in his room. There is much greater probability that such a consent would be given voluntarily than the consents of the type involved in the Judd and Higgins cases. This is made very clear in Judge Edgerton's opinion in the Higgins case (93 U.S.App.D.C. 340, 209 F.2d 820) in which he stated, 'Words or acts that would show consent in some circumstances do ...