Wrightson v. United States

• Decision Date: 10 March 1955
• Docket Number: No. 12038.,12038.
• Citation: 95 US App. DC 390,222 F.2d 556
• Parties: Samuel WRIGHTSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

95 US App. DC 390, 222 F.2d 556 (1955)

Samuel WRIGHTSON, Appellant, v. UNITED STATES of America, Appellee.

No. 12038.

United States Court of Appeals, District of Columbia Circuit.

Argued December 2, 1954.

Decided March 10, 1955.

Mr. Saul G. Lichtenberg, Washington, D. C. (appointed by the District Court), with whom Mr. Evan T. Davis, Washington, D. C., was on the brief, for appellant.

Mr. Carl W. Belcher, Asst. U. S. Atty., with whom Mr. Leo A. Rover, U. S. Atty., and Messrs. Lewis Carroll and Arthur McLaughlin, Asst. U. S. Attys., were on the brief, for appellee.

Before WILBUR K. MILLER, PRETTYMAN and FAHY, Circuit Judges.

PRETTYMAN, Circuit Judge.

Appellant Wrightson was indicted, tried and convicted with three other accused persons for an armed robbery. At the trial a box, a gun, and some cartridges were offered in evidence and admitted over objection. The ground of the objection was that the evidence was seized in an illegal search.

Police officers arrested Wrightson in his apartment at about five-thirty o'clock on the morning of July 29, 1953. The robbery for which he was ultimately indicted had occurred July 17, 1953, twelve days prior to the arrest. The officers had neither an arrest warrant nor a search warrant. The testimony as to why they were at Wrightson's apartment early in the morning almost two weeks after the robbery, was in answers to two questions asked by the prosecuting attorney. The first question, put to one of the arresting officers, was, "And as a result of your investigation of that alleged robbery did there come a time when you arrested the defendant Wrightson?", to which the officer replied, "I did, sir." In the second question Wrightson was asked, "Did he the officer tell you where he got the information that you were involved?", and he replied, "No, sir; he said he had an anonymous tip."¹

The officers did not testify on direct examination as to how they obtained entrance to the apartment, but on cross examination the following question was put and answer given:

"Q. Did you not gain admission in the apartment by knocking on the door, stating that there was a fight in the hall, there\'s blood all over the place, and this is the police and we are investigating, open the door, or we will knock it down?

"A. I did, sir."

Several people were in the room. The officer described the arrest thus: "I went to each one and asked him his name, and when I came to the defendant Wrightson he said his name was Sam Wrightson. I placed him under arrest at that time." Wrightson protested there had not been any fight, and the officer told him he was being arrested "for investigation of robbery." Then the officer observed on a bureau the box in question with some cartridges and, upon Wrightson's information, found the gun under a pillow on the bed.

The Government says Wrightson never, in the trial court, attacked the legality of the arrest. But he obviously rested his attack upon the search in major part upon the illegality of the arrest, and, moreover, at one point in a colloquy with the prosecutor, his counsel specifically said the point was that if the arrest was illegal the search was illegal.

A police officer may arrest for a felony without a warrant, if he has probable cause to believe that a felony has been committed and that the arrested person committed it.² This record does not show that the officers had any cause,³ probable or otherwise, to believe that Wrightson had committed the robbery. Maybe they had ample cause to believe it, but they did not reveal the cause. After reading the entire transcript we do not know why the officers were at Wrightson's apartment, especially at such an hour and so many days after the robbery, or why the officer arrested Wrightson as soon as he learned his name. The officer, by simply adopting, without more, the prosecutor's suggestion that "as a result of your investigation" the arrest was made, took to himself the authority to decide the sufficiency of cause for belief of Wrightson's guilt. The officer had no such power.

The point here is that at the trial, when the search and the arrest were under attack as illegal, the officer and the prosecutor chose not to reveal what cause there was for the arrest and thus not to support its legality. There is law which governs arrest, that law is binding upon police officers, and persons arrested have a right to invoke it.

It is perfectly true that after the arrest Wrightson was identified by the victim of the robbery and confessions were presented and received. But the tendency of police officers to arrest people without warrants and without probable cause is a matter of vast public importance, and it has been of such importance since Colonial days. Courts cannot put a stamp of approval upon actions of the police when the officers, challenged by an accused, fail or refuse to demonstrate compliance with the rules which circumscribe their authority. Certainly the police have been warned enough in these respects, by the Supreme Court of the United States,⁴ by this court,⁵ and by many other courts.⁶

An officer must show "probable cause" to get a warrant from a magistrate, and he must have "probable cause" to make an arrest without a warrant. The Rules of Criminal Procedure provide for the issuance of warrants. They may be issued upon a complaint, an indictment, or an information.⁷ For a warrant to be issued upon a complaint probable cause must appear from the complaint,⁸ and, of course, probable cause is inherent in an indictment or information.

We are here at the very heart of due process of law and, more directly, at the essence of the Fourth Amendment. Justification for a search without a warrant is here sought on the ground that it was incidental to an arrest without a warrant. When the arrest is held legal the incidental search becomes legal. When the arrest is stripped of necessity for probable cause, the search is stripped of the same necessity. But the Fourth Amendment imposes specific requirements upon search warrants. "* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation * * *." That requirement was regarded by the people of that day as so essential that ratification of the Constitution was conditioned upon its inclusion in a formal pronouncement by way of an Amendment to the document itself. To hold that a search warrant cannot issue except upon probable cause shown under oath, but that a search can be made without any factual demonstration of probable cause so long as it is made without a warrant, would be a deliberate circumvention of the constitutional prohibition. We cannot lightly toss away that safeguard by the roundabout device of removing the necessity for a showing of probable cause upon an arrest without a warrant and letting the corollary search without a warrant follow as of course. Moreover, that the Fourth Amendment covers warrants of arrest is established.⁹ The Amendment protects the people against the seizure of their persons as well as against the search of their houses.

The forefathers had reason for all this circumscription of the power to search houses and to seize people. Such searches and seizures are the embryo of tyranny, and they well knew it. Once those safeguards are gone, the supremacy of force is complete, potentially even if not presently factually.

Mr. Justice Jackson, writing for the Court in United States v. Di Re,¹⁰ said this:

"The Government\'s last resort in support of the arrest is to reason from the fruits of the search to the conclusion that the officer\'s knowledge at the time gave them grounds for it. We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success."

And further he said:

"We meet in this case, as in many, the appeal to necessity. It is said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment. Taking the law as it has been given to us, this arrest and search were beyond the lawful authority of those who executed them. The conviction based on evidence so obtained cannot stand."¹¹

The requirement of "probable cause" for action without a warrant is surely no less exacting than is the necessity for "probable cause" for the issuance of a warrant. But, if officers can arrest without a warrant and never be required to disclose the facts upon which they based their belief of probable cause — if, in other words, they have an untouchable power to arrest without a warrant, — why would they ever bother to get a warrant? And the same obvious conclusion follows if the courts, when an arrest is attacked as illegal, will assume, without facts, that an arrest without a warrant was for probable cause. To strike down all factual requirements in respect to probable cause for arrests without a warrant, while maintaining them for the issuance of a warrant, would be to blast one of the support columns of justice by law.

All these considerations are magnified and intensified in the case at bar by the facts that the officers, without a warrant, demanded admittance to a residence at five-thirty in the morning twelve days after the alleged offense.

In respect to two crucial issues our dissenting judge rests his opinion upon these assumptions: He assumes, without facts or statements in the record, that the officers would not have been at Wrightson's apartment or have arrested him without a warrant unless they had had probable cause to believe he had committed a felony;¹² and he assumes conclusively that this trial judge would not have committed an error of law. We cannot accept or...