visit to his apartment was to conduct a search and thus the arrest was 'incident' to the search rather than vice versa; (b) he did not consent to such a search; and (c) there were no 'exceptional circumstances' to justify making the search without a warrant.
The Court agrees with each of defendant's contentions and reads the applicable case law interpreting the Fourth Amendment's guarantee that
'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized'
to require suppression of the controverted evidence without resolution of the disputed points outlined above.
(a) Although the Government contends that the two plain-clothes men and the complaining witness went to defendant's apartment to 'talk with him' about the reports of his possible involvement in these three robberies so that his arrest, if he were innocent, could be avoided, the Court concludes, after a careful review of the record and balancing the inferences which could be drawn therefrom, that the purpose of the visit was to make, if possible, the kind of search and seizure which ensued. That the officers told Mr. Sklar, on being asked whether they had any hope for recovery of his missing goods, that they 'had some information that they might be able to return it to me'; that they had Mr. Sklar show them tables of the type missing; that they brought Mr. Sklar with them to defendant's apartment; and that they began searching immediately upon entering the apartment all support this conclusion.
(b) The Government's further contention that even if the officers intended to search the apartment, defendant consented to the search, and thus waived any right to complain that it violated the Fourth Amendment, is not supported either by the facts or by the applicable case law.
First, even if defendant's invitation to 'come on in' was made, it was in response only to an indication that the visit's purpose was talk -- not search.
Second, even if an invitation for talk could be construed (in circumstances other than those involving suspects and police) as an invitation for other consequences, the cases in the Court of Appeals and the Supreme Court clearly hold that
'words or acts that would show consent in some circumstances do not show it in others. 'Non-resistance to the orders or suggestions of the police is not infrequent * * *; true consent, free of fear or pressure, is not so readily to be found.' * * * no sane man who denies his guilt would actually be willing that policemen search his room for contraband which is certain to be discovered. It follows that when police identify themselves as such, search a room, and find contraband in it, the occupant's words or signs of acquiescence in the search, accompanied by a denial of guilt, do not show consent; at least in the absence of some extraordinary circumstance such as ignorance that contraband is present.'
Higgins v. United States, 1954, 93 U.S.App.D.C. 340, 341, 209 F.2d 819, 820. See also Johnson v. United States, 1948, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436; Lee v. United States, 1956, 98 U.S.App.D.C. 97, 98, 232 F.2d 354.
(c) Thus the purpose of the officers' visit having been to search the defendant's apartment (so that the arrest made was incident thereto), and no consent having been given, the search can be justified only if there were 'exceptional circumstances' which rendered impossible police application to a dispassionate magistrate for issuance of a warrant -- as the Supreme Court recently and strongly reiterated in Chapman v. United States, 81 S. Ct. 776. See also Lee v. United States, supra, and c.f. Johnson v. United States, supra.
None of the exceptional circumstances recognized by the cases cited -- goods sought in a moving vehicle or in danger of destruction, suspect likely or able to flee -- was present here. This being so, the search without a warrant was unreasonable.
The Government's contention that the officers lacked probable cause to seek a warrant until they were sure that the property was in the apartment -- made in connection with its argument that the purpose of the visit was talk and not search -- does not excuse the search; it is further reason for regretting that the search occurred. Nor can the Government argue that conditions constituting 'exceptional circumstances' were created once defendant knew the police were aware of his possession of the property; the police created these circumstances by entering defendant's home without a warrant. In any event, had the police sought a warrant, they still could have prevented defendant's flight or his destruction of the goods (a most remote possibility in view of their bulk) by placing men outside the door of the apartment.
See United States v. Jeffers, 1951, 342 U.S. 48, 52, 72 S. Ct. 93, 96 L. Ed. 59.
In here striking down a search and seizure without a warrant, and upholding the constitutional requirement that the key to invasion of the home be a magistrate's order rather than an investigating officer's desire, the Court should not be understood as holding that the police may never go to a home and ask to speak with a suspect about rumors of his involvement in a crime; the holding here condemns only their going with the intention of making a search. The present fact-situation not being one in which a searchless home visit is presented, the Court can only say generally that such a visit appears to be a reasonable way in which police can conduct the pre-arrest investigative process, and at the same time give to innocent suspects the opportunity to clear themselves; but the Court must also say that such a method of police activity, like 'inviting' 'suspects' to appear for questioning at police headquarters, is one which must always be open to judicial scrutiny of claimed police abuses.
An order is filed herewith reflecting the above opinion and suppressing as evidence in this case any and all property seized from defendant's premises on December 2, 1960.