considered as invitations secured by force. * * * Intimidation and duress are almost necessarily implicit in such situations; if the Government alleges their absence, it has the burden of convincing the court that they are in fact absent." 89 U.S.App.D.C. at 65-66, 190 F.2d at 651. Here it is plain that the Government makes self-contradictory arguments with respect to the element of consent. On the one hand, it contends that the police were justified in concluding that Mrs. Dorman would be hiding her son within, and on the other hand, that she consented to their entry and search. Other cases which lend support to the defendant's argument that true consent was lacking here are Waldron v. United States, 95 U.S.App.D.C. 66, 219 F.2d 37 (1955); Nelson v. United States, 93 U.S.App.D.C. 14, 208 F.2d 505 (1953); and Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 381 (1945). The cases upholding searches based on valid consent are clearly distinguishable: Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959); Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958); and United States v. Rees, 193 F. Supp. 849 (D.Md.1961).
As a counterbalance to the Government's theory that the entry and search were justified on the ground of exigent circumstances, the defendant cites Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A.L.R. 409 (1925), for the proposition that a search of a home, not made in connection with a lawful arrest, is unlawful unless made pursuant to a valid search warrant. While Agnello no doubt is still the law for the usual case, the Supreme Court, in its recent decision in Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (May 29, 1967) for the first time explicitly decided that the police could forcibly enter a home under "exigent circumstances." There, hot pursuit of an armed felon and a search, both for the felon and for weapons, without a warrant and not pursuant to an arrest were upheld. In Hayden, the felon not only was at his home, but he was seen to enter it by cab drivers who had followed him from the scene of the crime just moments before.
In another case, decided also last term, the Supreme Court refused to consider what possible limits might be inherent in the "exigent circumstances" doctrine. In Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (June 12, 1967), the police entered defendant's apartment hours after he was involved in a bank robbery, without a warrant, and knowing that he was no longer in the apartment. The entry was upheld by the California Supreme Court on the ground that the circumstances were "exigent" and that the entry was made primarily for the purpose of finding a felon or a hiding place for a felon. However, according to the facts developed in the dissenting opinion of Mr. Justice Douglas, it appears that the police conducted a rather general search while they were inside the apartment, and that among the items seized were some photographs of the defendant and rolls of coins presumably taken in the robbery of the bank. The fact that the Supreme Court remanded the case on other grounds leaves it unclear as to what its decision might have been on the Fourth Amendment issue had it undertaken to decide it.
The present case bears a marked likeness to Gilbert with respect to the fact that the defendant was not at home when the search occurred, that the search was conducted some hours after the offense charged, that the police had every reason to believe the defendant was armed and dangerous, and that the search was conducted for the ostensible reason of arresting a felon but in fact only turned up evidence linking the defendant to the crime. In one respect, this case is stronger for the Government in that the hour of the robbery and the hour of the search were such that it would have been difficult if not impossible for the police to obtain a warrant to arrest defendant or to search his house until the next morning.
Recognizing that there is still some doubt as to how the Supreme Court ultimately will resolve cases of this nature, it appears to this Court that the entry, search and seizure in this case should be upheld as a reasonable exercise of police authority, following the reasoning of Warden v. Hayden, supra. Once the police found papers identifying defendant Dorman at the scene of the crime, and showing his address, the police had probable cause to believe that he would have gone home following the robbery, and that he might still be there. They knew he was armed and that he was not unwilling to use force and violence to accomplish his aims. They had a duty to try to apprehend him as quickly as possible. Finally, it was not unreasonable for them to suppose that the defendant's own mother would lie in an attempt to shield her son from arrest. Finding that the entry was lawful, the Court sustains the seizure of the suit as the fruit of the crime with which Dorman is charged.
Accordingly, the motion to suppress will be denied. The parties shall prepare an appropriate order.