Court would also like to point out that this is not a case in which the defendant was arrested as he stepped out of his home. In such a case the argument as to control might possibly be stronger. In this case, however, the defendant had not been home for some time and could not by any reasoning be said to have been in control of the premises at the time of his arrest.
The court must now turn to the question of whether the seizure of the suitcase and the rolls of coins can be justified on any grounds other than as incidental to a lawful arrest. Despite the Government's argument to the contrary, it is the Court's view that under the facts stated supra, the officers did have 'probable cause' to arrest the defendant prior to entering his apartment, and that under the circumstances they could properly do so without a warrant. In pursuance of the right to arrest without a warrant, police may certainly go to a suspect's home and enter his apartment for the purpose of arresting him, where, as in the instant case, they are admitted to the building lawfully and find his apartment door ajar. Once in the apartment lawfully, they need not 'look the other way, or disregard the evidence (their) senses bring (them)', for 'mere observation' does not 'constitute a 'search". Ellison v. United States, 93 U.S.App.D.C. 1, 206 F.2d 476, 478. However, though officers having lawfully entered may observe, that entry does not give them the right to search and seize. The 'probable cause' which gives rise to the right to arrest a suspect without a warrant is measured by a far different test than the 'exceptional circumstances' which give rise to the right to search his premises without a warrant. Lee v. United States, 1956, 98 U.S.App.D.C. 97, 232 F.2d 354. Therefore, to say that police may arrest an individual without a warrant is not to say that they may invade his apartment for the purpose of making a search without a warrant. In the instant case, unless the officers initially possessed the right to make a search without a warrant, they could not gain the right to search merely by making a lawful entry. The question here, however, is whether the officers could seize property lawfully discovered by observation. It seems clear that the protections of the Fourth Amendment are applicable to unlawful seizures as well as to unlawful searches. 'The Fourth Amendment prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both 'houses' and 'effects." United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 95, 96 L. Ed. 59. Therefore, the Court must determine whether, the property having been lawfully discovered, its seizure by the police was 'reasonable' under the circumstances.
Searches and seizures without warrants have been the subject of the most scrutinizing judicial analysis. It is not necessary here to trace the development of the law in this field other than to state that searches and seizures without warrants are prohibited except as incident to lawful arrests, United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653, or under 'exceptional circumstances' which necessitate the undertaking of a search before a warrant can be secured, Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436. It might also be pointed out that (leaving aside the question of searches of 'movable vehicles') the first of these exceptions has proved to be by far the more significant.
In the present case, it seems clear that once the police had lawfully observed the location of the property seized, there was no urgency which required them to seize it without observing judicial procedures. As our Court of Appeals recently said, "There was no question of violence, no movable vehicle was involved, nor was there an arrest or imminent destruction, removal, or concealment of the property intended to be seized. In fact, the officers admit they could have easily prevented any such destruction or removal by merely guarding the door." Lee v. United States, supra (98 U.S.App.D.C.P. 97, 232 F.2d 356). So, too, another Court of Appeals recently stated in suppressing evidence: 'No vehicle is involved and no removal of the contraband was possible, the officers being present and able to place guards at all exits.' Walker v. United States, 5 Cir., 225 F.2d 447, 450. Therefore, it cannot be said that the discovery of the property created such an emergency as to make legal an other wise illegal seizure. In this case, as in Lee and Walker, the facts show that the police could easily have obtained a warrant while protecting the property. In this connection it should be pointed out that even though the police may lawfully discover contraband property while searching for other property described in a search warrant, in the absence of 'exceptional circumstances' they may not seize that contraband property under a warrant which does not cover it.
Similarly, there would appear to have been no justification for a search and seizure without a warrant prior to the discovery of the evidence observed in the apartment. For having arrived at the apartment in order to arrest or interrogate the defendant, and finding no one home, any appearance of 'exceptional circumstances' which might have existed prior thereto was dissipated. Having discovered the defendant's absence, and being capable of guarding the apartment successfully, the police would not have been justified in searching the apartment without first obtaining a search warrant. Lee v. United States supra, Walker v. United States, supra.
In view of the above, the Court will enter an order granting the motion to suppress as to that property seized which was not taken from the defendant's person, namely, the suitcase with its contents and the rolls of coins. However, the sums of money which were taken from the defendant's person were seized as the result of a lawful search incident to a lawful arrest, and thus the Court will not order that evidence suppressed.
The defendant has moved not only for suppression of the evidence but for return of the seized property. Fed.R.Crim.P. 41(e), 18 U.S.C. states in part, 'The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial.' From the evidence adduced, the Court believes that the property unlawfully seized is stolen property and thus 'subject to lawful detention'. For this reason, the Court will not order that said property be returned to the defendant. Instead, the Court will order that it be returned to the custody of the Property Clerk of the District of Columbia without prejudice to the defendant's right to gain possession thereof if he can establish a valid claim thereto pursuant to the procedures governing disposition of property in that officer's custody. See Title 4, D.C.Code, §§ 4-151 -- 4-158.