Hanna v. United States, 14462.

• Decision Date: 02 October 1958
• Docket Number: No. 14462.,14462.
• Citation: 260 F.2d 723
• Parties: Samuel J. HANNA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

260 F.2d 723 (1958)

Samuel J. HANNA, Appellant, v. UNITED STATES of America, Appellee.

No. 14462.

United States Court of Appeals District of Columbia Circuit.

Argued June 24, 1958.

Decided October 2, 1958.

Petition for Rehearing Denied October 27, 1958.

Mr. Frederick A. Ballard, Washington, D. C. (appointed by this court), with whom Mr. Eugene B. Thomas, Jr., Washington, D. C., was on the brief, for appellant.

Mr. John D. Lane, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher and Thomas A. Flannery, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Circuit Judge, HASTIE, Circuit Judge, United States Court of Appeals for the Third Circuit,^* and DANAHER, Circuit Judge.

Petition for Rehearing In Banc Denied October 27, 1958.

HASTIE, Circuit Judge.

Convicted of housebreaking and larceny in this District, the appellant Hanna grounds this appeal on the refusal of the District Court to suppress certain evidence; to wit, a quantity of money seized by Maryland police officers in a predawn search of a motel room occupied by appellant. Part of the hoard, paper money, was found under the sheets of the bed occupied by Hanna. The rest of the money, in coins, was found in a bag under his bed.

The search was admittedly without warrant. We need not examine most areas of the large body of authoritative rulings limiting very strictly the circumstances in which a search of premises without a warrant may constitutionally be made. For the only justification the prosecution urges for the search in this case is that it was a proper incident of a lawful arrest.

These are the circumstances of the arrest and search. Shortly after 4 a. m. state police officers came to a Maryland motel in response to a call from the motel keeper. When they arrived they were told that about 4 a. m. a man had rented two communicating rooms or cabins, ostensibly for himself and his invalid wife; that the motel keeper had not seen the woman but had seen two men entering the cabin with an overnight bag and what looked like a money bag. The motel keeper also related that he had looked through a window into one room and had observed the men sitting on the bed counting money. Thus informed, the police approached the rooms in question and found them dark and quiet. They knocked at the outer door which was opened from within by the occupant whom they confronted with a shot gun. As they entered they recognized the occupant as Robert Judd, a person with past convictions of theft who was then at large in Maryland on bond and was being sought by his bondsman because of delinquency in payment of the bond premium. Immediately upon thus recognizing Judd, the police placed him under arrest and proceeded to search the room he was occupying and the adjoining room in which appellant had retired. Actually, the officers pulled the cover from appellant, required him to get out of bed and thereafter found the money in and under the bed.

In this record, the interrogation of Sergeant Bond, the arresting officer and apparently the officer in charge of the police detail, reveals great uncertainty on his part as to the reason and basis for arresting Judd. Sergeant Bond was asked whether he intended to make an arrest when he knocked on the cabin door. He replied, "I did not know what I thought because I did not know what to expect." In any event, the door was opened by a man whom the sergeant recognized as one who had been convicted of theft and was even then at large on bail. At that point and without more, the officer says he decided to make the arrest, and did so. In these circumstances, it is not surprising that the sergeant was vague and vacillating as to the reason for this arrest. At one point he stated that he arrested Judd for investigation in the light of the report he had received from the motel keeper. At another point he varied this by saying: "I arrested him for having in his possession narcotics and money and held him for investigation." Of course, this could not have been true because the contraband was discovered after and not before the arrest. Again, the officer testified that he was influenced by recognizing Judd as a person on bail whose bondsman had complained of nonpayment of the bond premium. In this connection the sergeant made the puzzling statement, "I placed him under arrest because the fellow had been placed under arrest in our jurisdiction."

Maryland recognizes and enforces the familiar rule that, where no crime has been committed in his presence, a peace officer may make an arrest without warrant only on a felony charge, and then only on probable cause in the sense of reasonable ground for believing that the person arrested has committed the felony charged. Edwards v. State, 1950, 196 Md. 233, 76 A.2d 132; Freedman v. State, 1950, 195 Md. 275, 73 A.2d 476. Sergeant Bond's own testimony cannot reasonably be said to disclose probable cause for arresting Judd on a felony charge. An arguable case might have been made in support of the arrest had the police been advised of a recent theft and alerted to be on the lookout for the suspected perpetrator. At least they would then have had some affirmative indication that the motel keeper's report might be related to a recent crime. Cf. Edward v. State, supra. But not until many hours later did the Maryland police learn of the earlier burglary in the District of Columbia, the proceeds of which constituted the evidence here sought to be suppressed. When the arrest was made the police had nothing significant upon which to go except Judd's known criminal record and the report that he had taken a money bag into the motel on registering very late at night. These circumstances aroused suspicion, and properly so. They may well have justified questioning and surveillance, but they certainly fell short of providing probable cause for a felony arrest at that point. We think it rather clear from what the officers knew and from Sergeant Bond's testimony that a decision was made to arrest on suspicion first, and then to see what could be found which would establish probable cause for detention on a felony charge.

In these circumstances the arrest could not provide any justification for the search which followed.¹ The entire nighttime search without warrant, including the excursion into the bedroom which yielded the money in controversy, must therefore be viewed as unreasonable and illegal. It violated Maryland law and, as will appear later, an unreasonable search by state officers also violates the Fourth Amendment as incorporated into the Fourteenth.

This brings us to a serious and important issue of law. May articles obtained by an unreasonable search and seizure by state officers, without any involvement of federal officers, be introduced in evidence in a court of the District of Columbia, or in any federal court?

We find it useful to trace the history of this question in the Supreme Court and, to some extent, in the Courts of Appeals. More than forty years ago, in Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, the Supreme Court reviewed a federal conviction said to have been based upon evidence obtained in two unauthorized and unreasonable searches and seizures, one by federal officers and the other by state officers. The Court held that the refusal of the trial court on appropriate motion to return the articles seized in the search by federal officers was a denial of a right secured by the Fourth Amendment and, therefore, that the subsequent admission of those articles in evidence was reversible error. However, the Court ruled that the equivalent search and seizure by state officers was not a violation of any right secured by the Constitution.² Accordingly, no error was found in the introduction of articles thus seized in evidence.

More than thirty years later, but with the Weeks doctrine still unquestioned law,³ this court decided, properly citing and relying upon Weeks, that articles seized by New York police officers in the course of an unreasonable search were admissible in evidence in a trial in the District of Columbia. Shelton v. United States, 1948, 83 U.S.App.D.C. 257, 169 F.2d 665, certiorari denied 335 U.S. 834, 69 S.Ct. 24, 93 L.Ed. 387.

Then came Wolf v. People of State of Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. There the Supreme Court ruled explicitly, for the first time and contrary to the Weeks ruling on the point, that an unreasonable search and seizure by a state officer violates the Constitution because the Fourth Amendment prohibition of unreasonable searches and seizures is to be read into the Fourteenth Amendment as a requirement of due process of law. In the Court's words: "The security of one's privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment — is basic to a free society. It is therefore implicit in `the concept of ordered liberty' and as such enforceable against the States through the Due Process Clauses." 338 U.S. at pages 27-28, 69 S.Ct. at page 1361. The Court next reasoned that in enforcing this constitutional prohibition the states are not required to forbid the use of wrongfully seized items in evidence, though the use of evidence obtained by violation of the Fourth Amendment is forbidden in the federal courts under the Weeks rule. The states may content themselves with other sanctions against unreasonable searches and seizures. So, the precise decision in the Wolf case was that a state need not exclude evidence obtained by unconstitutional means from its judicial proceedings. But, in ruling that the Fourth Amendment prohibition operates through the Fourteenth to make unreasonable state searches unconstitutional, the Court in Wolf overruled the very constitutional pronouncement and holding upon which the Weeks decision, and our Shelton decision following Weeks, had predicated the admissibility of state seized evidence in a...