United States v. Thweatt

• Decision Date: 30 June 1970
• Docket Number: No. 22772.,22772.
• Citation: 433 F.2d 1226,140 US App. DC 120
• Parties: UNITED STATES of America v. Eugene E. THWEATT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

140 US App. DC 120, 433 F.2d 1226 (1970)

UNITED STATES of America v. Eugene E. THWEATT, Appellant.

No. 22772.

United States Court of Appeals, District of Columbia Circuit.

Submitted on Briefs on March 6, 1970.

Decided June 30, 1970.

Mr. Edward J. Hickey, Jr., Washington, D. C. (appointed by this Court), submitted on the brief, for appellant.

Mr. Broughton M. Earnest, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, submitted on the brief for appellee.

Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.

TAMM, Circuit Judge:

On November 20, 1968, appellant was convicted of burglary in the second degree (22 D.C.Code § 1801(b) (Supp. III 1970)) and grand larceny (22 D.C.Code § 2201 (1967)); he was sentenced to serve a term of ten years under section 5010 (c) of the Youth Corrections Act (18 U.S.C. § 5010(c) (1964)). Appellant urges that his conviction should be reversed on the basis of two primary considerations: (1) that it was erroneous for the district court to deny the motion to suppress certain evidence seized incident to the arrest, and (2) that the district court erred in submitting the case to the jury and in denying the motions for a new trial or judgment of acquittal on the charge of grand larceny due to the paucity of evidence concerning the value of the goods stolen.

I.

We need not dwell long upon appellant's first contention. The first prong of appellant's suppression theory suggests that a plan was conceived by the arresting officer to arrest appellant at his home in order to conduct a search incident to the arrest, it being the officer's belief that he did not have sufficient probable cause to merit the issuance of a search warrant. (Tr. 173-174, 180.) Appellant contends that this course of conduct is violative of the standards set by this court in McKnight v. United States, 87 U.S.App.D.C. 151, 183 F.2d 977 (1950).¹ In the present case there is no evidence that the police officers had reasonable alternatives to making the arrest in appellant's home; however, there is evidence in the record indicating that the police did not know appellant's work address and that the arrest was made on the same day the warrant was issued. (Tr. 175.) It appearing to us that the arrest was made as expeditiously as possible and at the only place where it was known that appellant could be found, appellant's McKnight argument must be rejected.

We turn our attention now to the second prong of appellant's allegation of error relating to the failure of the district court to suppress evidence seized incident to appellant's arrest. Probable cause for the issuance of the arrest warrant resulted from the identification of appellant's photograph by two witnesses. A pawnbroker identified appellant as the man who, on the day of the burglary, pawned a typewriter of the make and model of one taken in the burglary. (Tr. 93.) Mr. Finger, the victim of the burglary and larceny, also identified appellant's photograph, indicating that he was the man who knocked at Mr. Finger's door some three days before the crimes occurred and who, upon being told that the person for whom he asked did not live at that apartment, asked Mr. Finger whether he lived alone and whether he worked. (Tr. 114-115, 125.) Appellant does not argue that there was no probable cause for the issuance of the arrest warrant; his argument goes only to the admissibility of the evidence seized incident to the arrest.

Armed with this valid arrest warrant, the officers went to appellant's home on the evening the warrant was issued and arrested him. It is apparent from the record that the arresting officers had formed a plan to take Mr. Finger along with them when they went to make the arrest, for the purpose of identifying any items seized in a search of the premises. (Tr. 173-174.) We need not consider the propriety of such a course of action because Mr. Finger did not in fact accompany the officers at the time of the arrest. The fact that the officers might have entertained the idea of taking Mr. Finger along does not present us with an actual controversy but rather it presents only a hypothetical situation, for the plan was never executed. (Tr. 175.)

What actually did occur was an arrest pursuant to a valid arrest warrant and the seizure of items in the plain view of the officers when they entered appellant's apartment to arrest him. Appellant contends that such a search is violative of the standard set forth by the Supreme Court last term in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We cannot agree. While the Court in that case specifically overruled the broader holdings of Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), and United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L.Ed. 653 (1950), the Court made it evident that the "plain view" doctrine was not abrogated. After couching the rationale for limited "search incident to arrest" in terms of whether it was reasonable "for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use" (395 U.S. at 763, 89 S.Ct. at 2040), the Court stated:

In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee\'s person in order to prevent its concealment or destruction. * * * There is ample justification, therefore, for a search of the arrestee\'s person and the area "within his immediate control" — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.

(Id.; emphasis added.) The clear implication of this passage is that searches incident to arrest may not be made without a warrant in situations other than those in which the search is designed to assure the safety of the officers making the arrest,² to prevent the destruction of evidence, and in certain specified extraordinary circumstances.³

The rule in Chimel was promulgated by the Supreme Court after the seizure in the present case took place; however, we need not determine the retroactivity of that doctrine⁴ due to the clear language in the opinion stating that it is "closed or concealed areas in that room" which are covered by the rule. This court has recently reiterated its belief that the "plain view" doctrine survives Chimel. In an en banc decision issued this term we stated:

Since we hold that the police acted reasonably and lawfully when they took the action, without a warrant, of entering the house and searching for Dorman in appropriate places, no valid objection can be made to their conduct, when in the course of the search in the closet for Dorman they saw the uncuffed trousers readily identifiable as coming from the store that had been robbed, in seizing this clothing notwithstanding the absence of a warrant.

Dorman v. United States, 140 U.S.App. D.C. ____, 435 F.2d 385, at 394 (April 15, 1970). An even stronger case for application of the "plain view" doctrine is presented by the case at bar, in which there was a valid arrest warrant and in circumstances in which no search was necessary (whether for the arrestee or evidence) to bring the officers face to face with items they could reasonably believe to be fruits or instrumentalities of the crime.

This court has long recognized that no warrant is required when the questioned evidence is in such plain view as to require no search. Hiet v. United States, 125 U.S.App.D.C. 338, 372 F.2d 911 (1967). We reaffirmed the following year that "we have long since pointed out that mere observation does not constitute a search, as where the officer has good reason to believe that the fruits of crime are freely exposed on the suspect's property." Creighton v. United States, 132 U.S.App.D.C. 115, 116, 406 F.2d 651, 652 (1968). We recognized the necessity of such a rule long ago: "Law enforcement is difficult enough, without requiring a police officer to free his mind of clues lying flatly before him." Ellison v. United States, 93 U.S.App.D.C. 1, 3, 206 F.2d 476, 478 (1953). That the Supreme Court agrees with our view of this type of situation cannot be questioned in light of the statement of that Court in affirming our en banc decision in Harris v. United States, 125 U.S.App. D.C. 231, 370 F.2d 477 (1966):

Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968) (emphasis added).

Among the items which Mr. Finger listed as stolen were a "very dark green wool suit jacket and vest, a light medium grey lightweight woolen suit, a grey tweed sports jacket, and another pair of woolen slacks * * *." (Tr. 104.) The arresting officer described the events surrounding the arrest as follows:

As I entered the apartment, I advised Mr. Thweatt we had a warrant for his arrest and he was under arrest, and advised him of his rights. His wife and a friend were present and the Defendant was present, along with the officers.

We were in between the kitchen and the hallway and the bathroom. And

...