Smith v. United States

• Decision Date: 16 April 1964
• Docket Number: No. 17838,17839.,17838
• Parties: Roy A. SMITH, Jr., Appellant, v. UNITED STATES of America, Appellee. Cornelius ANDERSON, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

118 US App. DC 235, 335 F.2d 270 (1964)

Roy A. SMITH, Jr., Appellant, v. UNITED STATES of America, Appellee.

Cornelius ANDERSON, Jr., Appellant, v. UNITED STATES of America, Appellee.

Nos. 17838, 17839.

United States Court of Appeals District of Columbia Circuit.

Argued November 8, 1963.

Decided April 16, 1964.

Mr. Alexander Boskoff, Washington, D. C. (appointed by this court) for appellants.

Mr. Alan Kay, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Harold Titus, Asst. U. S. Attys., were on the brief, for appellee. Mr. William H. Willcox, Asst. U. S. Atty., also entered an appearance for appellee in No. 17838.

Before BAZELON, Chief Judge, and WILBUR K. MILLER and WASHINGTON, Circuit Judges.

BAZELON, Chief Judge.

Appellants Smith and Anderson were jointly charged, tried, and convicted on all three counts of an indictment, and received concurrent sentences on all counts. Count one charged unauthorized use of an automobile belonging to James Dolinger on or about October 3, 1962; count two charged unauthorized use of an automobile belonging to Joanna Wallace on or about October 4, 1962; and count three charged interstate transportation of the Wallace car.

Appellants claim the conviction on count one must be reversed because it was based on evidence obtained in a search without a warrant, in violation of the fourth amendment. They further claim admission of this evidence was prejudicial on counts two and three, and requires reversal of those counts as well.¹

The Government argues that (since the sentences on all counts are concurrent) under Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), we may affirm the entire judgment, despite error on count one, if there is sufficient properly admitted evidence to sustain the jury's verdict on count two or count three. But we think Hirabayashi allows affirmance only if the jury's consideration of counts two and three was not prejudiced by error on count one. This appears from the rule as stated by the Supreme Court in United States v. Trenton Potteries Co., 273 U.S. 392, 402, 47 S.Ct. 377, 381, 71 L.Ed. 700 (1927):

"The combined sentence on both counts does not exceed that which could have been imposed on one alone. There is nothing in the record to suggest that the verdict of guilty on the first count was in any way induced by the introduction of evidence upon the second. In these circumstances the judgment must be sustained if either one of the two counts is sufficient to support it."

See United States v. Guido, 200 F.2d 105 (2d Cir. 1952); United States v. Gordon, 196 F.2d 886 (7th Cir. 1952), reversed on other grounds, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953); Samuel v. United States, 169 F.2d 787 (9th Cir. 1948); Farris v. United States, 24 F.2d 639 (9th Cir. 1928).²Hirabayashi is not to the contrary since there was no claim in that case that error on either count prejudiced the other.³

Thus we must consider whether there was error on count one and, if so, whether it prejudiced counts two and three.

The Wallace counts (two and three). Joanna Wallace testified that her maroon 1962 Chevrolet disappeared from its parking space in front of her house in the District of Columbia some time after 8:30 p. m., October 4, 1962. James Bailey testified that on the same evening he and Elmer Williams,⁴ attracted by a hammering sound near their homes on Sligo Mill Road, Prince Georges County, Maryland, investigated and saw a maroon 1962 Chevrolet parked with its hood lifted in a wooded area at the dead end of the road. The dome light inside the car was lit and there was a light on underneath the hood. Standing twenty-five feet from the car, he saw two men whom he identified as appellants, one "under the hood," and the other inside the car. They fled when Williams shouted "Halt, police." Bailey and Williams pursued but were unable to catch the two men.

Officer Brown of the Prince Georges Police testified that he responded to a call and observed the 1962 Chevrolet and a 1955 Buick parked about fifty yards away. About fifteen minutes after his arrival, Brown saw the appellants approaching the Buick carrying a gasoline can; Bailey and Williams told him these men were "the ones they had chased from the '62 Chevrolet." When Brown questioned the appellants, they denied any knowledge of the Chevrolet, stated they had run out of gasoline in the Buick, and proceeded to pour the gasoline they were carrying into the Buick. Brown then arrested the appellants.

The 1962 Chevrolet was later identified as the car stolen from Joanna Wallace; the 1955 Buick belonged to appellant Anderson. At the time of the arrests, both cars were impounded and taken to Knoll's Esso Service Station in Hyattsville, where the series of events relating to the Dolinger count began.

The Dolinger count (one). James Dolinger testified that his 1962 Chevrolet disappeared from its parking space on October 3, 1962. When the police returned it to him three days later, several parts were missing: the tachometer, the carburetor, a spare tire, and the transmission (shown to have been stamped as No. B192871).

Agent Mulholland of the Federal Bureau of Investigation testified that on October 5, 1962, he and Officer Baxter of the Prince Georges County Police went to Knoll's Esso Service Station where, without a search warrant, they examined the 1962 Chevrolet (the Wallace car) and the 1955 Buick. In the trunk of the 1955 Buick he saw a tire and a Chevrolet transmission bearing No. B192871. Defense counsel objected when Agent Mulholland began telling about the results of the search, on the ground that the search was illegal. The court overruled the objection without holding a hearing. Thereafter, Officer Baxter gave testimony similar to that of Agent Mulholland, adding that under the front seat of the Buick he found a tachometer of the type used only in late model Chevrolets.

Detective Reid of the Metropolitan Police testified that while investigating the thefts he learned that the transmission from Dolinger's car had come into the possession of one Andy Hardy who turned it over to the police on October 23.⁵ Hardy testified that he had bought the transmission from the appellants in the early part of October. Richard Donaldson, who had assisted Hardy in negotiating with the appellants, supported Hardy's testimony.⁶

Appellants argue their conviction on count one must be reversed because the search conducted by Officers Baxter and Mulholland violated the fourth amendment and the court erred in admitting the testimony resulting from that search. Even where probable cause exists a warrantless search is forbidden⁷ unless made incident to a valid arrest⁸ or justified by exceptional circumstances, such as a significant possibility of removal⁹ or destruction¹⁰ of the object of the search. Even before the recent case of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881 (1964), it was clear that a warrantless search of a car in police custody at a time after the occupants' arrest and under circumstances where there is no danger of removal is illegal. Rent v. United States, 209 F.2d 893 (5th Cir. 1954); Shurman v. United States, 219 F.2d 282 (5th Cir. 1955); Millette v. State, 167 Miss. 172, 148 So. 788 (1933). The Supreme Court's holding to the same effect in Preston puts the matter to rest.

Although the trial court in the present case did not hold a separate hearing on the legality of the search, the record shows that this case falls squarely within the ambit of Preston and the other cases cited supra.¹¹ On these facts there is no need to remand to the District Court for further findings. Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921).¹² We hold the search was illegal.¹³ Wrightson v. United States, 95 U.S.App.D.C. 390, 222 F.2d 556 (1955).

Accordingly the testimony given by Officers Baxter and Mulholland should have been excluded. But the question arises whether admitting their testimony might be harmless error since Hardy and Donaldson provided other evidence incriminating appellants. See People v. Parham, 33 Cal.Rptr. 497, 384 P.2d 1001 (1963). This question is controlled by Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).

In Fahy, a policeman observed the defendant at 4:40 a. m., driving away from a synagogue with a paint brush and a can of black paint in his possession. Later the same day, having learned that several black swastikas were painted on the synagogue between 4:00 a. m. and 5:00 a. m., the policeman went to the defendant's garage and without a search warrant seized the brush and can of paint. The defendant was later arrested and confessed. The trial court held the can and brush admissible; the Connecticut Supreme Court of Errors held they were not but affirmed the conviction on the ground the error was harmless in view of the other evidence in the case. The Supreme Court reversed, finding it unnecessary to decide "whether the erroneous admission of evidence obtained by an illegal search and seizure can ever be subject to the normal rules of `harmless error'" since the admission of the brush and can was prejudicial in several respects.

The Supreme Court held admission of the brush and can was not merely cumulative of the officer's properly admitted testimony that he saw those objects in the defendant's possession, because admitting the objects themselves (1) corroborated the officer's testimony, and (2) provided the basis for opinion testimony that the paint and brush matched the markings on the synagogue, a significant fact obviously not available from the officer's testimony. As to the other incriminating evidence, the confession, the record showed it might have been induced by the police telling Fahy they had the brush and can. Although there was no claim at trial that the confession was inadmissible as fruit of the poisonous tree, the Supreme Court held that the "defendan...