Before you may draw an inference from the defendant's unexplained or unsatisfactorily explained possession of the property, you first must find that the Government has proved beyond a reasonable doubt every essential element of the offense.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeals from the United States District Court for the District of Columbia (D.C. Criminal No. 334-73). 1975.CDC.130
Bazelon, Chief Judge, Danaher, Senior Circuit Judge, and Justice,** United States District Judge for the Eastern District of Texas. Opinion for the Court filed by District Judge Justice. Opinion filed by Senior Circuit Judge Danaher, dissenting from reversal of the conviction of Carter.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JUSTICE I. INTRODUCTION
In the early morning hours of June 29, 1971, security personnel at the Troop Command supply area of the Walter Reed Army Medical Center in Washington, D.C., discovered that the arms room of the facility had been forcibly entered. A window had been broken, a protective screen removed, and locks cut. A military police squad leader noticed two automobiles in a nearby parking lot, immediately before being notified of the break-in. He described one automobile as an intermediate sized, dark-colored, late 1960's vehicle. In this automobile, he observed one black male. *fn1 The other automobile was smaller than the first. Another military officer testified that the vehicles left the parking lot at a "rapid rate of speed." He described the lead automobile as large, "approximately in the Pontiac class"; the second automobile he saw was smaller, possibly a Mustang, Comet, or Falcon. This witness, Warrant Officer William Cherry, stated that he noticed the silhouettes of one person in the large automobile and two in the smaller vehicle.
The evidence revealed that fifteen M-14 rifles were missing from the arms room. Also gone were ten shotguns, one. 22 calibre revolver, five M-17 gas masks, and a quantity of M-14 magazine clips, rifle cleaning equipment, and M-14 instruction manuals.
The arms room is located in a large projection of Building 63 of the Walter Reed facility. The projection is bisected by a hall, one end of which operates as an entrance to the building. On one side of the hall, the arms room and a storage room are adjacent to each other, the arms room abutting the entrance. These two rooms are of equal depth.
A large room, known as the linen exchange area, is contiguous to the storage room. The hall passing in front of the arms room and storage room leads into an open area in the linen exchange area, which serves as a passageway across this end of the room; the hall resumes at the end of the passageway. At the other end of the linen exchange area, two doors, opening to the outside, are set opposite each other in the side walls of the room. The linen exchange area equals the combined width of the arms room and storage room and is half again as deep as these two rooms, as measured from the hall and passageway. None of these rooms are connected with the others except by the hall.
In the linen exchange area, three long tables, parallel to each other but apparently separated by several feet, extend perpendicular to the hall and passageway. A wine bottle full of gasoline, with a wick - a partially scorched rag - protruding from the top, was discovered in the space between the two tables nearest the storage room, approximately even with the two outside doors. The device fits the description of a "Molotov cocktail", as defined in the District of Columbia Code. *fn2
A laundry room is situated in Building 63B, which is near Building 63. This room, called a "washateria", was generally open around the clock before the burglary. An inspection of the area near the washateria turned up a large bolt cutter and a crowbar.
The various charges of which appellants stand convicted were the outgrowth of these events.
B. Identity of the Appellants
Multi-count indictments were returned against the appellants, Marzell Peterson, Lamont S. Carter, and Jerome R. Patterson, in 1972. A superseding indictment charged them with a variety of offenses under the District of Columbia and United States Codes. In May of 1973, all three appellants were brought to trial; the conspiracy count of the indictment had been severed. Appellant Carter was convicted of second degree burglary while armed, *fn3 theft of government property, *fn4 arson, *fn5 and possession of a Molotov cocktail; *fn6 he was sentenced to serve five to fifteen years in prison. Appellant Peterson, who was found guilty of one count of receiving and concealing government property, *fn7 was sentenced to a term of ten years. *fn8 Appellant Patterson was the only one of the three as to whom the jury could not reach a verdict. On June 27, 1973, having been re-tried, Patterson was convicted of conspiracy to receive and conceal government property, *fn9 but acquitted as to the five substantive counts of the indictment. He was sentenced to serve a term of from one to five years. An appeal is taken from each of these convictions. The contentions of appellant Peterson are treated in a separate opinion by Judge Danaher in United States v. Peterson, 173 U.S.App.D.C. 49, 522 F.2d 661 (1975). II. APPELLANT PATTERSON
Appellant Patterson urges four points of error in this appeal, two of which we find to be meritorious. The first issue for consideration pertains to the admissibility of certain evidence seized during a search of his residence.
A. The Search and Seizure
Armed with a warrant for the arrest of appellant Patterson, special agents of the Federal Bureau of Investigation arrived at 4033 Ely Place, S. E., the appellant's home, on the morning of August 10, 1972, at about 9:00 o'clock. They had no search warrant for this residence.
Special Agent Thomas Dowd posted himself outside the rear of the premises; other special agents entered through the front door and arrested Patterson near the front of the house. While appellant Patterson was being placed under arrest, another special agent admitted Dowd, through the back door, into the kitchen area of a shed that was attached to the house. Once inside, Dowd immediately went through the kitchen area to an open doorway, which was the entrance to a narrow flight of makeshift stairs. After ascending the stairs, he came into an open attic. There, he observed a pile of shopping bags, cardboard boxes, blankets and luggage on the floor of the attic near a corner. Dowd testified that he feared a sniper was hiding behind the pile, and that he approached it with caution. Testifying further, Dowd stated that, in order to reach the corner, he found it necessary to move an open, two-handed shopping bag; in the process of moving the bag, he glanced down and observed a quantity of M-17 military gas masks, M-14 ammunition clips, and a white pouch with "military type" writing on it. (The pouch was later found to contain five gun cleaning kits.) Dowd did not find anyone behind the pile. The other special agents likewise failed to discover anyone in the house, aside from appellant Patterson.
After making an inventory of the items found in the attic, the special agents obtained a search warrant. It was based, in significant part, on information gained from this initial search. *fn10 After being informed that the warrant had been issued, the special agents left appellant's home with the seized items. Nothing else was seized during subsequent searches of the premises.
The court below initially granted appellant Patterson's motion to suppress the items seized as a result of the warrantless search, finding that the search exceeded the permissible scope of a "search incident to an arrest" delineated under the doctrine of Chimel v. California. *fn11 The trial judge's comments in the record make it clear that, in so ruling, he did not find that Special Agent Dowd was without authority to enter the attic; rather, the trial judge determined that Dowd's actions, once in the attic, were outside the bounds prescribed by Chimel. After reconsideration of the motion to suppress, the trial judge reversed his previous ruling, based on the holding in United States v. Wright, *fn12 and the seized items were admitted into evidence against appellant Patterson. While we are troubled, as was the trial judge, with the scope of the attic search and with application of the "plain view" doctrine to this set of facts, we need not reach this issue, for we disagree, in the first instance, with his finding that Special Agent Dowd was justified in entering the attic without benefit of a valid search warrant.
The Fourth Amendment's mandate of "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the . . . things to be seized" contemplates that, before a search warrant may be issued, a determination be made by a neutral and detached magistrate of whether these requirements have been met. *fn13 As the Supreme Court said in McDonald v. United States:
We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals . . . And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative. *fn14
Thus, the Supreme Court has held that a warrantless search of a dwelling is per se unreasonable, even if the officers have probable cause to conduct it, in the absence of the exigent circumstances referred to in McDonald. *fn15 And in each of those few instances where the Court has countenanced searches without a warrant, the majority has argued that the result is not inconsistent with the purposes and values which lead to the adoption of the fourth amendment. Indeed, it has been only after exhaustive analyses and frequent dissents that the Court has sanctioned certain warrantless searches as being reasonable under the amendment; these include consent searches, *fn16 searches incident to an arrest, *fn17 searches concomitant to the "hot pursuit" of a felon, *fn18 emergency searches for the protection of an arresting officer, *fn19 and searches to prevent the imminent destruction or removal of evidence. *fn20
In the case before this court, probable cause for the issuance of a warrant to search appellant Patterson's home might well have been found by a magistrate, since Patterson had been indicted for theft of government property, and the F.B.I. was in receipt of information that he had obtained possession of one of the stolen weapons. *fn21 In the face of this, there was no allegation, and the facts would not support a contention, that it was impractical to obtain a search warrant prior to the arrest of appellant Patterson. *fn22 Moreover, the government does not contend that he gave permission for the search.
Since the legitimacy of the warrant for appellant Patterson's arrest has not been disputed, the question for determination is whether the search was proper as a "search incident to a valid arrest". With respect to this issue, the Chimel rubric must be considered: an arresting officer may search the arrestee's person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and may search the area within the immediate control of the person arrested, "construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." *fn23 However, "there is no comparable justification . . . for routinely searching any room other than that in which an arrest occurs." *fn24 Clearly, at the time of his arrest, the attic was not within appellant Patterson's immediate control, and the government has not contended that the F.B.I. was in receipt of information to support a conclusion that any contraband evidence in the house was in danger of destruction or removal from the jurisdiction. It follows that the search of the attic cannot be defended as one incident to an arrest.
The government, however, argues that Special Agent Dowd was legally justified in entering the attic, and that his subsequent seizure of contraband was legitimate under the "plain view" doctrine. In considering the circumstances of this seizure in the context of "plain view" analysis, it is of consequence that we heed the warning of the Supreme Court in Coolidge v. New Hampshire that "to permit warrantless plain-view seizures without limit would be to undo much of what was decided in Chimel. . ." *fn25 The court further cautioned:
It is [also] important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the "plain view" doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. *fn26
Consequently, as to the "plain view" doctrine, the threshold question is whether Special Agent Dowd's ingression into the attic was proper under applicable standards.
A dual justification is asserted by the government. On the one hand, it suggests that the search was maintainable because there were warrants outstanding against those of appellant Patterson's co-indictees who were fugitives. The second rationale is that Dowd had a right to conduct a "protective" search of the attic, in order to insure the safety of the F.B.I. agents at the scene.
As to the contention that the special agents were merely seeking to execute outstanding arrest warrants, it is significant that this search took place more than a year after the burglary. It was also conceded by the government that the special agents who conducted the search had no factual information that indicated the presence of the fugitives at appellant Patterson's residence; in fact, one special agent acknowledged that the F.B.I. did not have information as to whether the fugitives were in the Washington, D.C., area, or even if they were still in the United States. Nevertheless, it is this set of circumstances - which we find to be entirely deficient - that the government urges as warranting a search of the entire premises. *fn27
We next turn to the government's contention that the search was necessary to protect the safety of the officers involved. In this connection, evidence was submitted that the special agents were informed prior to the search that appellant Patterson had been involved in a burglary in which military weapons were stolen, and was an associate of Marzell Peterson and one Joseph D. Gantt, both of whom had been involved in a "shootout" with police. Following the "shootout", these individuals were arrested and charged; but we have found nothing in the record to disclose what information the special agents possessed as to the whereabouts of Peterson and Gantt at the time of the search in issue here. In further support of the government's argument, it was shown that the special agents were aware that a number of the stolen weapons had not been recovered and that warrants of arrest were outstanding for other suspects in the burglary investigation, who had been declared to be in a fugitive status by the F.B.I. shortly before the search. In addition, Special Agent Dowd testified that, before his entry into the house, he observed that the attic window would be a good place for a sniper to position himself. All of the special agents admitted, however, that they saw no movement behind the window and heard no voices from the attic.
These circumstances, whether considered singly or collectively, do not present sufficient justification for a "protective" search of the entire house; for a rule that permitted a warrantless residence-wide search in any instance where an arresting officer hypothesized the presence of armed felons and noticed a potential vantage for a ...