United States v. Mills, 22444.

• Citation: 472 F.2d 1231
• Decision Date: 10 May 1972
• Docket Number: No. 22444.,22444.
• Parties: UNITED STATES of America v. Harold E. MILLS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

472 F.2d 1231 (1972)

UNITED STATES of America v. Harold E. MILLS, Appellant.

No. 22444.

United States Court of Appeals, District of Columbia Circuit.

Argued February 26, 1971.

Decided May 10, 1972.

Mr. Peter F. Rousselot, Washington, D. C. (appointed by this Court), with whom Mr. Richard B. Ruge, Washington, D. C., was on the brief, for appellant.

Mr. Robert C. Crimmins, Asst. U. S. Atty., for appellee. Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and Roger E. Zuckerman, Asst. U. S. Atty., were on the brief, for appellee.

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

Argued En Banc February 26, 1971.

ON REHEARING EN BANC

LEVENTHAL, Circuit Judge:

Appellant was convicted by a jury upon a three-count indictment charging violations of the Federal narcotics laws. The central question is the admissibility in evidence of narcotics found in appellant's possession on a search of his pockets at the police station, where he was brought following an arrest for the petty offense of driving with a learner's permit while unaccompanied by a licensed driver.¹ The appeal was originally heard by a division of this court, which affirmed the conviction, one judge dissenting, as to counts one and two of the indictment. The denial of appellant's motion to suppress the narcotics, made at pre-trial hearing, and renewed at trial, was sustained on the ground that the inspection of the contents of appellant's pockets was valid because he was to be detained in stationhouse confinement. Appellant had the right to post $50 collateral for that petty offense, and had he been accorded that opportunity he would, with $171 in cash on him, have been permitted to leave the stationhouse forthwith, without any search of his person. We hold that the stationhouse inspection of the contents of his pockets was an unreasonable search, in violation of the guarantees of the Fourth Amendment, and that the evidence found as a result of this search is inadmissible.

I. FACTUAL BACKGROUND

On December 29, 1967, Patrolman Willie C. Ivery, Jr., of the Metropolitan Police, was on patrol in the neighborhood of Sixth and H Streets, N.E. At about 4:30 a. m. he observed an auto, driven by appellant, approaching him at an excessive rate of speed. He flagged the car down, walked over to it, and asked appellant, who was alone in the car, for his driver's permit and the automobile registration. Appellant produced only a District of Columbia learner's permit and did not have the registration. The officer told appellant that it was illegal to operate an automobile with a learner's permit unless a licensed operator was with him. Appellant told him that he had just dropped off the car's owner at a nearby restaurant. The officer then placed appellant under arrest for driving without a proper permit. Officer Ivery patted appellant down and found no weapons. He called for a scout car, which arrived shortly thereafter. The officers and appellant then drove to the nearby restaurant and there Craig Tatum, the owner of the car and a licensed operator, verified appellant's account. Officer Ivery told Mr. Tatum that he would be cited for permitting an unlicensed driver to operate his car and asked Tatum to accompany him to the precinct. Tatum agreed, and Ivery went with him, following the other officers, who had charge of appellant, to the stationhouse.

The difference in Officer Ivery's handling of appellant by arrest, as distinguished from the citation procedure used with Mr. Tatum, was not due to any apprehension of danger from appellant, but was based on the officer's understanding that appellant's offense, as contrasted with Tatum's, required an arrest procedure. Officer Ivery testified at trial that his "normal procedure" was to proceed by citation for petty offenses unless the person "disrespects me or something." Tatum was asked to go to the station to pick up his articles; asked whether Mr. Mills had offended him, Ivery replied "No." The trial transcript reveals that Mills stopped promptly on hearing the whistle,² the officer quickly verified that Mills had had Tatum's permission to drive the car, nothing turned up in the frisk for weapons conducted in the street, and Mr. Mills did not resist arrest in any way but was "very cooperative." The reason Officer Ivery gave for arresting Mills, instead of proceeding by citation, was: "This is a different type of offense. . . . This type of offense always constitutes an arrest, having no D.C. permit." It appears that police instructions had not caught up with a recent change in the law³ which made the arrest for this offense a matter of discretion. However, we assume that the arrest of Mills was valid.

As to events following the arrival of Mills at the police station, the police say that Mills was taken into the stationhouse through a side door, detained briefly in a small room, and was then delivered into the custody of Officer Ivery, who brought him to the booking desk. Ivery testified that Mills was then ordered to remove everything from his pockets, the standard procedure for persons to be held in stationhouse detention. Mills emptied his pockets — which contained more than $170 in cash — but was reluctant to expose whatever was in the left pocket of his jacket. Mills had stuck his hand in that pocket, according to the police; when Ivery assisted Mills in removing the hand, Mills was seen to be holding a small black change purse, the contents of which were later identified as 22 capsules of heroin and 33 capsules of cocaine.

While we accept the foregoing account for purposes of this case, we take note that Mills claims that in the small side room, or back room, he was searched thoroughly, stripped of his clothing, that it was during this search that the narcotics were found, and that he was not brought to the booking desk until after the narcotics had been found during the strip-search in the small room.

II. THE UNREASONABLENESS OF THE SEARCH Applicable Principle

In deciding whether the search was valid, our starting point, as noted above, is that the arrest of Mills for driving without a proper permit was valid. We do not rely upon the doctrine that when an arrest on a traffic charge is used as a pretext to justify a search for evidence of other crimes, the search is invalid.⁴ However, 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. "The mere fact of a lawful arrest does not end our inquiry." Schmerber v. California, 384 U.S. 757, 769, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966). Under the Fourth Amendment, the validity of searches and seizures turns upon their reasonableness, and even when there is a valid arrest the search must be reasonably incident to the arrest.

In most situations, the reasonableness of the search of an arrested man is clear enough, for it is reasonable for an arresting officer "to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape" and "to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction." Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). Those justifications have no application for the case before us — even assuming that the scout car officers did not strip-search Mills in the side room, and that we take Officer Ivery's account that the emptying of pockets followed on the booking for driving alone with a learner's permit. There was no question of a stationhouse search for weapons or for evidence concerning the offense of driving without a proper permit; appellant was frisked at the time of the arrest, with no arms found, and the offense was proved completely at the time of the arrest. The validity of the search of Mills at the stationhouse must stand or fall on the premise that it was a predetention inventory, undertaken to hold and account for valuable or potentially dangerous personal property — such as rings, belts, watches or jewelry — during the detention of the person arrested. This is the theory underlying Officer Ivery's trial testimony and it is defended by Government counsel.

We do not here consider the proper scope of a search that is supported by the premise of forthcoming confinement. In this case, no such justifying premise is available to validate the search of defendant Mills described by Officer Ivery. Having been arrested for a petty offense, Mills should have been informed of his opportunity, prescribed for that offense, to post $50 collateral and leave the precinct station. Instead, the police officer who conducted the booking proceeded forthwith to require Mills to empty his pockets. We think that was an unreasonable search.

The En Banc Remand Order

The pertinent facts appear in the trial transcript and in the transcript of remand proceedings in the District Court, which this court, en banc, ordered after hearing oral argument. Four judges dissented from that remand, being of the view that the appeal should be decided on the record already made. It is appropriate to identify and explain the basis of that remand order. The majority of the court is of the view that the remand was appropriate in light of the statute authorizing an appellate court to "require such further proceedings to be had as may be just under the circumstances." 28 U.S.C. § 2106. On the disposition by the division drawn for the case, there were three opinions: Judge Robb was of the view that it was reasonable for the police to take charge of the contents of appellant's pockets since he was about to be placed in a cell. Judge Fahy concurred, reserving his position if evidence other than contraband were seized. Judge Robinson dissented, being of the view that a...