435 F.2d 385 (D.C. Cir. 1970), 21736, Dorman v. United States

Docket Nº:21736.
Citation:435 F.2d 385
Party Name:Harold B. DORMAN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 15, 1970
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 385

435 F.2d 385 (D.C. Cir. 1970)

Harold B. DORMAN, Appellant,

v.

UNITED STATES of America, Appellee.

No. 21736.

United States Court of Appeals, District of Columbia Circuit.

April 15, 1970

Page 386

Mr. William W. Greenhalgh, Washington, D.C. (appointed by this Court) for appellant. Mr. J. Garvan Murtha, Hartford, Conn. (appointed by this Court) also entered an appearance for appellant.

Mr. John G. Gill, Jr., Asst. U.S. Atty., with whom Mr. David G. Bress, U.S. Atty., at the time the brief was filed, was on the brief, for appellee. Messrs. Thomas A. Flannery, U.S. Atty., John A. Terry, and Roger E. Zuckerman, Asst. U.S. Attys., also entered appearances for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, and ROBB, Circuit Judges, sitting en banc.

ON REHEARING EN BANC

LEVENTHAL, Circuit Judge:

On December 2, 1966, four men robbed a clothing store in the District of Columbia. Appellant Dorman was tried along with co-defendant Jones, and they were convicted as being two of the participants in the crime. Dorman received a sentence of up to nine years under the Youth Corrections Act. Jones was sentenced to three to nine years in prison.

A division of this court affirmed the conviction of Jones, but reversed the

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conviction of Dorman on the ground that his rights were violated when the police entered his house without a warrant in order to arrest him, and saw and seized, without any arrest, a suit of clothes from the robbed store which was put in evidence at the trial. This court granted the Government's request for en banc rehearing of Dorman's appeal, and the record includes a remand proceeding held in the District Court pursuant to order entered by this court after the granting of the rehearing en banc, wherein witnesses were heard and findings made on various issues pertaining to the failure of the police to obtain a warrant.

I. Validity of Night-Time Warrantless Entry of Defendant's Dwelling To Arrest him for Robbery

A. Pertinent Circumstances

These are the pertinent facts as they appear from the transcript of the trial and Dorman's motion to suppress the suit of clothes, supplemented by the remand proceedings.

Shortly after 6 p.m. on a Friday evening, four armed men entered Carl's Men's Shop. In the store were three salesmen, two customers, a man and his wife, and a co-owner of the shop. The men entered in pairs. Dorman, one of the first two in the store, and wearing blue-black corduroy pants, asked salesman Holmes if he could see a size 38 blue sharkskin suit similar to one in the window. By the time Holmes returned with such a suit from the stock room the other two men had entered the store, drawn a gun, and announced, 'This is it.' Dorman, who had also drawn a gun, relieved Holmes of the suit. Holmes and the other five victims were herded into the stock room while the weapons were freely brandished. Jones pointed a gun at the head of another salesman and poked him with it a couple of times. One of the robbers put a gun to the chin of the male customer, Richards, and said, 'Do not look, ' and put the gun to his chin to move his head up so he would not observe them.

The gunmen ushered the six persons into the stock room, stripped them of their billfolds, watches and rings, bound them around the ankles and wrists with neckties taken from a nearby rack, and made them lie on the floor. Two of the robbers remained in the stockroom, pointed guns at the victims and made threats. The other two rummaged about the store, looking for money and clothes of certain sizes. During this period a shot was fired in the back room 'when they were passing the gun from one to another.'

An officer on traffic duty across from the store saw three men emerge with their arms full of clothes. He pursued one of them, but was unsuccessful. Police were swiftly called to the scene, and they investigated the premises from 7:00 to 7:45 p.m. Detective Blancato found on the floor of a changing room a pair of dark corduroy pants, and copies of a monthly probation report showing the name and address of defendant Dorman. Apparently Dorman left the store wearing the blue sharkskin suit.

Detective Blancato phoned the Identification Bureau and shortly after 8:00 p.m. he learned that the files contained Dorman's photograph. He drove three victims to headquarters, arriving at 8:30 p.m., and the victims made a photographic identification of Dorman.

In accordance with established procedure the detective called the Assistant United States Attorney designated for the purpose, to report the facts of the case, in order to obtain approval to proceed with the arrest of the person believed guilty of the crime. As the district Court stated in the remand findings, this practice insures that a responsible legally trained individual will give his preliminary approval before the matter is referred to a magistrate. The established procedure made it the responsibility of the designated Assistant United States Attorney to locate a magistrate or judge for the issuance of an appropriate warrant. Detective Blancato began typing out the affidavit to accompany the application for an arrest

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warrant. When he was about finished the Assistant United States Attorney called him and told him that no magistrate was available, but that since a felony was involved, Dorman could be arrested without a warrant. The District Judge's remand findings set forth that the designated Assistant had no recollection of the events of that evening, that the then U.S. Commissioner, if called, would have testified that he probably was not available apparently because Friday nights he had dinner with his mother. The judge of the Court of General Sessions designated for the purpose of authorizing warrants at that time was the late Honorable Andrew Howard. He died prior to the remand proceeding.

The remand findings set forth the circumstances which in the opinion of the District Judge justified Dorman's arrest without a warrant as follows: The police had positive identification of three eyewitnesses, and positive evidence of Dorman's current address. They had reason to believe Dorman might flee when he became aware of the loss of his probation papers identifying him. They knew Dorman and his associates were dangerous-- they were armed and had physically abused their victims. The most likely place to find him after 10 p.m. was his home. The District Judge credited their testimony that the only purpose of the visit to his home was to arrest him. They needed no additional physical evidence.

About 10:20 p.m. the police arrived at Dorman's home, knocked twice and announced their identity. Dorman's mother answered the door, in her night-gown. When the police said they were looking for her son, she told them that he had been there but had left some minutes earlier, and suggested that if they did not believe her, they could come in and look for themselves. At that point, 'We heard a noise from one of the back bedrooms.' In the belief that Dorman was hiding within, the police brushed past Mrs. Dorman and encountered one Allen, a man friend of Mrs. Dorman who lived in the apartment, coming out of a bedroom.

Blancato and the officers continued their search for Dorman. Some policemen looked in the other rooms, and behind a sofa pulled far enough away from the wall to conceal a man. Blancato pushed open the slightly-ajar door of a walk-in closet with the barrel of his shotgun. Inside the closet, 'right in front of us, ' was a blue suit. The unhemmed cuffs were visible beneath the suit jacket. The suit bore the label of Carl's Men's Shop.

Blancato left two of his men in the apartment to apprehend Dorman if he returned. The District Court credited his statement that this was with the acquiescence of Mrs. Dorman because it lessened the danger of a shoot-out and for that reason was preferable to a stakeout.

B. General Requirement of Need for Warrant To Enter a Home Without Consent In Order To Search for a Suspect Sought for Arrest

The issue is whether the police acted unreasonably, and in violation of constitutional rights, when they proceeded, in furtherance of their objective to arrest a suspect they had probable cause to believe was an armed felon, to make a warrentless, unconsented, non-forcible entry into his home late in the evening, at a time some few hours after the offense and within an hour after they obtained eyewitness identification of the suspect, and when a magistrate was not readily available.

The Supreme Court has not explicitly passed on this question. 1 The literature abounds in discussion of the permissibility

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of an arrest made without a warrant, but there is little if any analysis focusing on entry into a dwelling for the purpose of an arrest. However, we think the pertinent principles, and their application to the case before us, are fairly to be apprehended from the Fourth Amendment precedents, keeping in mind the many circumstances, permutations and variables that must be taken into account in the ultimate determination of reasonableness.

The Fourth Amendment proclaims: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The Fourth Amendment protects a right of privacy. This is a right that is increasingly recognized in decisions involving this and other provisions of the Constitution as a core protection safeguarding all citizens against unwarranted intrusions by police...

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