Roberts v. United States

Decision Date17 June 1964
Docket NumberNo. 17496.,17496.
Citation332 F.2d 892
PartiesRaymond Ralph ROBERTS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Isaac A. Scott, Jr., of Chowning, Mitchell, Hamilton & Burrow, Little Rock, Ark., for appellant.

Robert D. Smith, Jr., U. S. Atty., Little Rock, Ark., for appellee, James W. Gallman, Asst. U. S. Atty., Little Rock, Ark., on the brief.

Before VOGEL, MATTHES and BLACKMUN, Circuit Judges.

VOGEL, Circuit Judge.

Appellant was convicted by a jury of murder in the second degree. He has been sentenced to life imprisonment. The victim, Dr. Keith E. Herlocker, was an employee of the Veterans Administration Hospital at Fort Roots, North Little Rock, Arkansas. The shooting, of which appellant was found guilty, occurred on the hospital premises which are admittedly within the exclusive territorial jurisdiction of the United States.1 On motion for a new trial, the District Court, in a well-considered and carefully detailed opinion published as United States v. Roberts, D.C.E.D.Ark.1963, 223 F. Supp. 49, determined the issues, held adversely to appellant's contentions and denied the motion. Specific reference is here made to that opinion and only such recitation of the evidence as becomes necessary to determine this case will be made here. Sufficiency of the evidence has not been made an issue. In this appeal court-appointed counsel have raised two points claiming: (1) Certain evidence was improperly admitted at the trial in that it was obtained as the result of an illegal search and seizure; and (2) the "incomplete dying declaration of the deceased" was improperly admitted into evidence. Those two points, and the factual background giving rise to them, will be discussed separately.

The deceased was shot shortly after 9:00 a. m. on March 4, 1963, and died two days later. Appellant was taken into custody late in the morning of March 4, 1963, and that afternoon was charged with assault with intent to kill Dr. Herlocker. Following the latter's death, appellant was charged with murder in the first degree and was so indicted by a grand jury on September 12, 1963.

On the morning of March 4, 1963, Lieutenant Taylor, then a Detective Sergeant, and Police Chief Thomas of the El Dorado, Arkansas, Police Department, interrogated appellant's wife, Mrs. Roberts, in her home at 1521 Champagonolle, El Dorado, Arkansas. From Mrs. Roberts the officers obtained a description of the appellant; discovered the way he was dressed the last time she had seen him; received a description of his truck; and inquired about the firearms he owned. During the course of the conversation Mrs. Roberts volunteered the information that appellant had owned a pistol and that approximately a year before he had fired it into the ceiling of their home. That information was relayed to Federal Bureau of Investigation Agents in Little Rock, who advised the preparation, for Mrs. Roberts' signature, of a statement consenting to a search of the premises at 1521 Champagonolle in order to recover the bullet. Such a statement was prepared by Lt. Taylor and the following day, March 5, 1963, Mrs. Roberts signed the consent document at the home of her relatives eight miles out of El Dorado. The consent was executed in the presence of Lt. Taylor and Police Chief Thomas, who were dressed in plain clothes and were driving an unmarked police car. Lt. Taylor had "talked with Mrs. Roberts previously on the phone to see if retrieving the bullet would be all right." Mrs. Roberts, with her small child and a female relative, then accompanied the officers back to her home in El Dorado to conduct the search for the bullet lodged in the ceiling. Mrs. Roberts unlocked the house to admit the officers. The record does not reveal that she indicated any reluctance to the conduct of the search. In fact, the opposite would appear to be true. She assisted the officers by providing them with a coat hanger and a pair of wire pliers with which to probe for the bullet. The officers did not make a general search of the house, but "went there for the specific purpose of getting the bullet". Upon its recovery the bullet was sent to the Little Rock office of the FBI and eventually transported to the FBI Laboratory in Washington, D. C., where it was subsequently identified as having been fired from the same weapon as was the bullet which killed Dr. Herlocker.

On October 16, 1963, the appellant moved under Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C. A., for return of the bullet obtained from his home and to suppress the evidence. A hearing was held on October 18, 1963, following which the motion was denied. In its order overruling the motion to suppress, the District Court reserved the right to file a post-trial memorandum and later combined discussion of this question with its memorandum opinion denying motions for new trial and for reduction of sentence. 223 F.Supp. 49, supra.

At the trial the bullet was received into evidence over objection and Warren G. Johnson, a Special Agent for the Federal Bureau of Investigation, was allowed to testify that the bullet recovered from the home of appellant and the one which killed Dr. Herlocker were "fired by the same weapon".

Appellant contends that the decision of the District Court receiving the bullet into evidence is incorrect for three reasons:

"(a) the constitutional rights of a husband granted by the Fourth Amendment cannot be waived by the consent of his wife;
"(b) the consent of Mrs. Roberts to search the home was obtained by implied coercion; and
"(c) the property seized was a personal effect of the husband and under no circumstances could the wife consent that it be seized."

Whether the Fourth Amendment protection against unreasonable searches and seizures2 can in effect be waived by the consent of one's spouse to enter and search premises jointly occupied and controlled by husband and wife was appropriately regarded by the lower court as a "serious question" and a "close one".3 (223 F.Supp. 49, 57, 58) Without the benefit of a Supreme Court clarification of the issue,4 those federal courts which have considered the question have taken divergent positions. Compare, e. g., Stein v. United States, 9 Cir., 1948, 166 F.2d 851, 854-5, certiorari denied, 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768, and United States v. Sergio, D.C.N.Y., 1937, 21 F.Supp. 553, with Cofer v. United States, 5 Cir., 1930, 37 F.2d 677, 679, and United States v. Rykowski, D.C. Ohio, 1920, 267 F. 866, 871.

In United States v. Rykowski, supra, after holding that the government had failed to prove that the husband authorized the wife to consent or that the wife was acting as the husband's agent, the court stated at page 871 of 267 F.:

"* * * The wife had no implied authority, in the absence of her husband, to license a search of his premises."

Reaching the same result, the Fifth Circuit said in Cofer v. United States, supra, at page 679 of 37 F.2d:

"* * * The wife was without authority to bind her absent husband by waiving a legal warrant, or consenting to an unauthorized search."

Cf., Waldron v. United States, 1955, 95 U.S.App.D.C. 66, 219 F.2d 37, and United States v. Derman, 1946, D.C.S.D.N.Y., 66 F.Supp. 511.

Of those cases arriving at a contrary conclusion, Stein v. United States, supra, gives probably the greatest latitude to the proposition that a wife has authority to give voluntary consent to officers to enter and search premises occupied jointly with her husband and over which they exercise joint control. There the defendant and a woman had been living together as husband and wife. Following a disagreement concerning the defendant's use of opium, defendant removed the woman's clothing from the house, locked the door and retained possession of the key, and both parties commenced residing elsewhere. Shortly thereafter the woman began cooperating with federal narcotics officials. She led the agents to the house and, since she had no key, gained entrance by breaking a window. She then admitted the agents, who recovered narcotics which eventually aided in the conviction of the defendant. In affirming the judgment of conviction, the Ninth Circuit held that since the woman had a lawful right to enter the home, she could also extend an invitation to the agents to enter and thus make valid their search for and seizure of the evidence. See, also, Abel v. United States, 1960, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; United States v. Sferas, 7 Cir., 1954, 210 F.2d 69, 74, 75; United States v. Best, D.C.Mass., 1948, 76 F.Supp. 857, 861; and United States v. Sergio, D.C.E.D. N.Y., 1937, 21 F.Supp. 553; 31 A.L.R.2d 1078, 1091.

The District Court in the instant case, after carefully considering this question and the areas of search and seizure closely related thereto, concluded that, page 59 of 223 F.Supp.:

"* * * In the last analysis the question of the validity of a given search and seizure must be determined by reference to whether that particular search and seizure were reasonable or unreasonable, and that determination must be made on a case to case basis in the light of all of the surrounding facts and circumstances. United States v. Rabinowitz, supra 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Harris v. United States, supra 1947, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; Lawson v. United States, supra 8 Cir., 1958, 254 F.2d 706; Kernick v. United States, 8 Cir., 242 F.2d 818; Schwimmer v. United States, 8 Cir., 232 F.2d 855."

The District Court was of the opinion that:

"* * * the search and seizure of the bullet here involved are sustainable on the theory that on March 5, 1963, the Roberts premises in El Dorado were in the possession and control of Mrs. Roberts, that she had a right of ingress and egress to and from the premises, and that by virtue of her relationship to the premises she had `authority\' to authorize the search." 223 F.Supp. at 60.

It based its ruling to...

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