to those condemned in Accarino v. United States, 85 U.S.App.D.C. 394, at page 402, 179 F.2d 456, at page 464, in which it was stated:
'* * * Unless the necessities of the moment require that the officer break down a door, he cannot do so without a warrant; and if in reasonable contemplation there is opportunity to get a warrant, or the arrest could as well be made by some other method, the outer door to a dwelling cannot be broken to make an arrest without a warrant. The right to break open a door to make an arrest requires something more than the mere right to arrest * * *.'
Counsel argue further that, even if it be held that there were necessitous circumstances which justified a breaking, the arrests still would be unlawful for failure of the police to comply with the procedure required under Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332, in which it was held that an officer may break open a door to make an arrest without a warrant only if, after notice of his authority and purpose, he is denied admittance.
After reviewing all the facts and circumstances surrounding the two arrests and the searches subsequent thereto, the court concludes:
(1) When the police went to 2027 Klingle Road, N.W., they had d probable cause to arrest Estella Murphy for felonies, namely, violations of the federal narcotics laws by the sale to Gloria Morton and by possession of a supply of narcotics. This being so they had the right to arrest her without a warrant.
(2) When Officer Hood rang the bell, loudly announced that it was the police and that he wanted Estella Murphy, exhibiting his police credentials through the glass of the door to the defendant Murphy, whom he recognized, he complied with the procedure approved in Miller v. United States, supra. Even if it should be considered that he did not announce clearly that the purpose of his visit was to arrest Estella Murphy, it would have been useless for Officer Hood to explain any further, since the defendant Murphy ran from the door and up the stairs upon seeing his police credentials. In the Miller opinion, 357 U.S. at page 310, 78 S. Ct. at page 1196 the Supreme Court recognized:
'* * * 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 * * *.'
Here, the defendant Murphy's action in running immediately upon being apprised of the presence of the police a short time after an illicit sale of narcotics by her, demonstrated full awareness of their purpose and made any further announcement useless.
As to the making of the arrest without a warrant at a late hour of the night, the police did not have sure grounds upon which to arrest the defendant Murphy for the sale or possession of narcotics until about 11 p.m., when Gloria Morton was searched at the Women's Bureau and narcotics were found on her. At that hour no magistrate was readily available to issue either an arrest or a search warrant, nor was a magistrate required to be available at such hour. Porter v. United States, 103 U.S.App.D.C. 385, 258 F.2d 685.
The police are to be commended for waiting to make an arrest until after they had obtained sufficient evidence to support a prosecution and conviction.
In this case, there were circumstances which justified dispensing with a magistrate's arrest warrant. To paraphrase Johnson v. United States, 333 U.S. 10, at page 15, 68 S. Ct. 367, 369, 92 L. Ed. 436: Although no suspect was fleeing or likely to take flight and the arrest was made in permanent premises, not in a movable vehicle, 'evidence or contraband was threatened with removal or destruction.' Indeed, the reality of the threat of destruction of the contraband was demonstrated by the defendant Williams' unsuccessful efforts to dispose of that which was in his possession, foiled only by plumbing which was out of order. Under Similar facts, an arrest without a warrant after an entry without breaking and the search incident thereto were held valid by the Court of Appeals of this circuit in Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751, certiorari denied 1958, 357 U.S. 937, 78 S. Ct. 1388, 2 L. Ed. 2d 1552.
Upon all the facts and circumstances, the court therefore holds that the entry by breaking was lawful.
(3) Having lawfully entered, the police immediately arrested the defendant Murphy as soon as they could catch her. As an incident to her arrest they had a right to make a reasonable search thereafter not only of her person but also of the premises, for instrumentalities and means by which the crime was committed, the fruits of the crime, and property the possession of which is a crime. Harris v. United States, 331 U.S. 145, 154, 67 S. Ct. 1098, 91 L. Ed. 1871. The articles taken from her person and from her premises, all of which were obtained after her lawful arrest, were therefore validly seized.
(4) As to the arrest of the defendant Williams, the whole background, as well as all the circumstances of his presence in the bathroom, a part of the premises which the officers had a right to search following their arrest of Estella Murphy, were such as to give police officers familiar with the narcotics traffic reasonable ground to believe he too had committed or was committing a felony, namely, the possession of narcotics. His immediate arrest was therefore lawful, and the seizure of marked money found in Williams' pocket was a lawful incident to such arrest.
(5) The seizure of the narcotics from the bowl of the commode after Williams' arrest was valid as incidental to the arrest of either the defendant Murphy, owner of the premises, or the defendant Williams, who had the narcotics in his constructive possession at the moment of his arrest.
For the foregoing reasons the court denies the two motions to suppress.
The defendant Williams having made no showing of prejudice which would justify the granting of severance, the court also denies the motion for severance filed in his behalf.
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