471 F.2d 1082 (D.C. Cir. 1972), 23734, United States v. Robinson

Docket Nº:23734.
Citation:471 F.2d 1082
Party Name:UNITED STATES of America v. Willie ROBINSON, Jr., Appellant.
Case Date:October 31, 1972
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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471 F.2d 1082 (D.C. Cir. 1972)

UNITED STATES of America

v.

Willie ROBINSON, Jr., Appellant.

No. 23734.

United States Court of Appeals, District of Columbia Circuit.

October 31, 1972

Argued June 1, 1972.

Certiorari Granted March 19, 1973. See 93 S.Ct. 1500.

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Mr. Joseph Gartlan, Jr., Washington, D. C., with whom Mrs. Dorothy Sellers, Washington, D. C. (both appointed by this court), and Mr. John K. Crummey, Bethesda, Md., were on the brief, for appellant.

Mr. Henry F. Greene, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellee. Messrs. Harold H. Titus, Jr., present U.S. Atty., and Earl J. Silbert, Asst. U. S. Atty., also entered appearances for appellee.

Mr. Scott R. Schoenfeld, Washington, D. C., filed a brief on behalf of Americans for Effective Law Enforcement, Inc. as amicus curiae.

ON REHEARING EN BANC

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

J. SKELLY WRIGHT, Circuit Judge:

This appeal from a jury conviction of federal narcotics offenses 1 raises questions under the Fourth Amendment, as difficult as they are important, concerning the permissible scope of a search of the person incident to a lawful arrest for violation of a District of Columbia motor vehicle regulation. The case was heard initially by a division of this court which reversed the conviction, one judge dissenting, on the ground that the search of appellant's person violated the commands of the Fourth Amendment. Upon rehearing en banc, however, the court vacated the opinion and judgment of the division and held that since the taking of evidence in the District Court had not focused upon the scope issue relied upon by the division, a remand was necessary in order that "an authentic version of what actually happened" might be presented. 2 This supplemental evidentiary hearing having now been completed, we find the search of appellant

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to be unconstitutional and therefore reverse the conviction.

I

On April 19, 1968, Officer Richard Jenks of the Metropolitan Police Department stopped a 1965 Cadillac at the intersection of Ninth and U Streets, N.W., for a "routine spot check." At the time of this stop, Officer Jenks examined not only appellant's temporary operator's permit and automobile registration card, but also his selective service classification card. Officer Jenks permitted appellant to continue about his business, but only after making notes of the three items. His note taking alerted him to a discrepancy between the "1938" date of birth listed on the temporary operator's permit and the "1927" date of birth listed on the selective service classification card. Officer Jenks then went to police traffic records and discovered that the operator's permit issued to "Willie Robinson, Jr., " born in 1927, had been revoked, and that a temporary permit had been issued to a "Willie Robinson, " born in 1938. 3 The pictures on the revoked permit and on the application for the temporary permit were of the same person; both were likenesses of the man he had stopped for the routine check on April 19.

On April 23, 1968, while on duty, Officer Jenks observed appellant operating the same vehicle. He stopped appellant, asked him for his permit and registration card and, upon being shown the same permit appellant had exhibited four days earlier, placed appellant under arrest for operating a motor vehicle after revocation of his operator's permit and for obtaining a permit by misrepresentation. According to his testimony at the remand hearing, Officer Jenks then advised appellant of his rights and proceeded to search him. Since the arrest was one which involved taking appellant to the station house, 4 under Police Department instructions Officer Jenks was required to make a full field search as an incident to the arrest. 5 A full field search "is a thorough search of the individual." Remand transcript at 99. "He examines the contents of all of the pockets in a field type search and in-custody arrest at all times." Id. at 120. In conducting a full field search, "even though [the officer] may feel something that he believes is not a weapon, he is instructed to take it out." Id. at 100. The officer is taught "to examine everything he has on him at the field search. Everything that we find in his pockets is examined to find out what exactly it is." Id. at 104.

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Officer Jenks' search complied with Police Department instructions. He was unable to recall the precise sequence in which he searched appellant. His best recollection was that in placing his right hand on appellant's left breast he felt an object. 6 Although Officer Jenks could not ascertain the precise size or consistency of this object, there was no suggestion that he believed it to be a weapon or believed himself to be in danger. On the contrary, he admitted that he did not have any specific purpose in mind when he searched appellant: "I just searched him. I didn't think about what I was looking for. I just searched him." Remand transcript at 32. Officer Jenks proceeded to extract the object-which turned out to be a wadded up cigarette package-from appellant's pocket. He then opened the package and found it to contain 14 gelatin capsules of heroin. Officer Jenks then placed appellant under arrest for possession of narcotics, and continued his search without finding any weapons or any additional narcotics. 7

Throughout the proceedings in this case, the Government has consistently conceded, 8 and indeed there can be no doubt, that in extracting the cigarette package from appellant's pocket and opening the package so as to examine its contents, Officer Jenks exceeded the permissible scope of a limited frisk for weapons. 9 Moreover, as Officer

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Jenks' testimony at the remand makes clear, the full search of appellant's person that actually occurred in this case cannot be justified on a theory that the narcotics were "in plain view." 10 Thus the question is now squarely presented whether, and under what circumstances, an arresting officer may conduct a full search of the person incident to a lawful arrest for violation of a mere motor vehicle regulation. 11

II

Ordinarily, a warrant must be obtained by a police officer before he may make a search. 12 Searches of both

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person and place incident to lawful arrest, however, have traditionally been exceptions to this rule and have been held constitutional even though they have been made without prior approval by a neutral magistrate. Nevertheless, "the bare fact that a person is validly arrested does not mean that he is subject to any and all searches that the arresting officer may wish to conduct." United States v. Mills, 153 U.S.App.D.C. 156, ----, 472 F.2d 1231, 1234 (decided May 10, 1972) (en banc). Rather, the validity of searches and seizures under the Fourth Amendment turns upon their reasonableness, and since a warrant will not be available to insure that arrest based searches are reasonable both at their inception and in their execution, courts must review the constitutionality of such searches with special care. See, e. g., Schmerber v. California, 384 U.S. 757, 766-772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

In exercising this power of review, courts must give particularly careful weight to the fundamental Fourth Amendment principle which has been given renewed emphasis in the housing inspection 13 and stop-and-frisk 14 cases: a search will comply with the requirements of the Fourth Amendment only if its scope is no broader than necessary to accomplish legitimate governmental objectives. This principle is stated most clearly in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Supreme Court upheld an on-the-street detention and search for weapons of three suspects. The Court found that the police officer in Terry had "adequate constitutional ground, " but not probable cause, to believe that the men he detained and searched were going to commit a crime. In its opinion

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the Court stressed that the Fourth Amendment governs all intrusions by agents of the public upon personal security, 392 U.S. at 18 n. 15, 88 S.Ct. 1868, and that the manner in which the search and seizure are conducted is as much the test of their reasonableness as whether they were warranted at all. Id. at 28, 88 S.Ct. 1868. Citing a number of earlier cases, many of which involved searches initiated upon probable cause, the Court in Terry stated that "[t]his Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope, " and that "[t]he scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible." Id. at 17-19, 88 S.Ct. at 1878. Thus the Court made absolutely clear that the underlying rationale of Terry was a restatement of, rather than a departure from, existing case law, and that, although Terry itself involved a search upon less than probable cause, the scope limitation principle was to apply to all searches no matter what the evidentiary basis for their initiation.

If Terry left any doubt at all that the scope limitation principle was intended by the Supreme Court to apply to arrest based searches, that doubt was expressly foreclosed...

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