209 F.2d 789 (D.C. Cir. 1953), 11740, Gatewood v. United States

Docket Nº:11740.
Citation:209 F.2d 789
Case Date:December 23, 1953
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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209 F.2d 789 (D.C. Cir. 1953)




No. 11740.

United States Court of Appeals, District of Columbia Circuit.

December 23, 1953

         Argued Oct. 13, 1953.

          Mr. T. Emmett McKenzie, Washington, D.C., for appellant.

         Mr. William B. Bryant, Asst. U.S. Atty., with whom Messrs. Leo A. Rover, U.S. Atty., and William J. Peck, Asst. U.S. Atty., at time of argument, Washington, D.C., on the brief, for appellee. Messrs. Charles M. Irelan, U.S. Atty., at time record was filed, and William R. Glendon, Asst. U.S. Atty., Washington, D.C., at time record was filed, also entered appearances for appellee.

         Before CLARK, WILBUR K. MILLER and WASHINGTON, Circuit Judges.

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         WILBUR K. MILLER, Circuit Judge.

         The trial judge, sitting without a jury, found Daniel Gatewood guilty of violating penal statutes concerning narcotics. On this appeal, the ultimate question is whether the police had illegally entered Gatewood's apartment when they seized therein the evidence which became the basis of his conviction.

         In a somewhat unusual manner, the charge against Gatewood grew out of an unrelated charge against another. Elizabeth Williams was under indictment in the District of Columbia for a narcotics violation. Because she had apparently 'jumped bail,' a bench warrant was issued for her on September 15, 1952. On September 19, the Metropolitan Police Department sent a teletype message to the Police Department of Dayton, Ohio, which described Elizabeth Williams, said she was wanted here on a bench warrant, told where and with whom she might be found in Dayton, and requested her arrest.

         The Dayton police replied by teletype September 22. They advised that Elizabeth Williams had been in Dayton on September 17 and 18, but had left with a woman known as 'Candy' and was then reportedly in Hamilton, Ohio, in a rooming house on Chestnut Street operated by one Remus.

         Acting on this information, the Metropolitan Police Department wired the Police Department of Hamilton, Ohio, on September 25. The message described Elizabeth Williams, advised she was wanted here on a bench warrant for 'bond jumping,' and was reported to be at the Chestnut Street rooming house in Hamilton in company with a woman known as 'Candy.' A teletype message from the Hamilton police, dated September 25, said Elizabeth Williams had been apprehended as requested, and had waived extradition. On the same date, the local police wired acknowledgment, saying a United States warrant would follow and would be handled by the United States Marshal's office.

         During the morning of September 27, 1952, Officer Brewer, of the Narcotics Squad of the Metropolitan Police Department, received an anonymous tip by telephone that Elizabeth Williams could be found in Apartment 39 at 1324 Monroe Street, N.W., in the District of Columbia. Brewer and his fellow squad members, Holcomb and Panetta, knew the bench warrant for her had been issued September 15; so they acted on the telephone information without making an inquiry at Police Headquarters which would have revealed that, two days before, Elizabeth Williams had been arrested in Ohio under the bench warrant, and was then in custody thereunder. They went to Apartment 39, which they knew was Gatewood's, and one of them knocked on the door. A voice from within asked who was there, and one of the officers replied, 'From Western Union.' Thereupon Gatewood opened the door, but attempted to close it again when he saw the three men. The policemen forced their way in. According to Panetta, the sole witness for the government, it was after they were already in the apartment that the officers explained their mission to Gatewood in this way:

         'We told him we had information that Libby Witt, Elizabeth Etta Williams alias Libby Witt, we had information that she was in his apartment.'

         They did not identify her as a fugitive. They did not say a warrant for her arrest was outstanding, nor that they had entered for the purpose of arresting her.

         Once inside, the officers saw a Negro girl sitting up in bed in the room beyond. They went in and immediately found she was not Elizabeth Williams. But they did observe a pile of loose white powder lying on a magazine on a dresser. They also saw a glassine envelope containing more white powder, a powdermarked knife, a strainer, and $202 in currency. When questioned, Gatewood said the powder was for his own use by

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'snorting.' The material was seized and Gatewood was arrested. Later he was indicted, tried and convicted, as we have indicated.

         In addition to Panetta's testimony, outlined above, it was stipulated that the government chemist who analyzed the white powder would identify it as 287 grains of heroin hydrochloride, quinine hydrochloride and milk sugar, and would say the knife, the strainer and the magazine showed traces of the same mixture.

         In Accarino v. United States, 1949, 85 U.S.App.D.C. 394, 179 F.2d 456, 465, we reviewed the authorities and found them unanimous in holding that before an officer can break open the door to a home, he must make known the cause of his demand for entry. The government's evidence in this case showed the officers gained entrance to Gatewood's apartment through falsehood followed by force, without first disclosing to him the true reason they desired to enter. 1'Upon that clear ground alone,' as we said in the Accarino opinion, 'the breaking of the door was unlawful, the presence of the officers in the apartment was unlawful, and so the arrest was unlawful.' 2 The ruling...

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