United States v. Sheard

• Decision Date: 16 November 1972
• Docket Number: No. 71-1250.,71-1250.
• Citation: 154 US App. DC 9,473 F.2d 139
• Parties: UNITED STATES of America v. William SHEARD, a/k/a William Nixon, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

154 US App. DC 9, 473 F.2d 139 (1972)

UNITED STATES of America v. William SHEARD, a/k/a William Nixon, Appellant.

No. 71-1250.

United States Court of Appeals, District of Columbia Circuit.

Argued June 14, 1972.

Decided November 16, 1972.

Rehearing Denied January 31, 1973.

Mr. Bruce J. Terris, Washington, D. C. (appointed by this Court), for appellant.

Mr. John A. McCahill, Asst. U. S. Atty., with whom Messrs. Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Mr. Thomas A. Flannery, U. S. Atty., at the time the record was filed and Mr. Richard A. Hibey, Asst. U. S. Atty., also entered appearances for appellee.

Before WRIGHT, TAMM and WILKEY, Circuit Judges.

TAMM, Circuit Judge:

Appellant, William Sheard, was indicted on February 2, 1970, in connection with the brutal rape-murder of a five year old girl. The indictment included four counts: felony murder, first degree murder, rape, and taking indecent liberties with a minor. Subsequently tried and convicted of felony murder and rape, appellant was sentenced to concurrent terms of twenty years to life on the felony murder count and of ten to thirty years on the rape count. This appeal followed.

I.

On the evening of November 1, 1969, five year old Penny Sellers, together with her older sister Denise, visited the apartment home of their grandfather, Robert Dennis, at 1333 Harvard Street, N.W., Washington, D.C. As they were wont to do, the girls did not restrict their visit to their grandfather's apartment, but also frequented the rooms of several of the tenants. They visited Sheard's apartment on more than one occasion, playing with his puppy and enjoying the candy he offered them. At approximately 9:30 p. m., when both girls were watching television in the basement apartment of a friend, Penny decided to leave by herself and return to Sheard's apartment to play with his puppy. When considerable time had elapsed and Penny had not yet returned, her grandfather proceeded to the apartment where he was told by Sheard that Penny "had gone up the street with a man." At the grandfather's request Sheard then telephoned the police.

The police arrived at about 11:00 p. m., having been advised to contact "a Sheard" at 1333 Harvard Street. Upon meeting Sheard they were informed by him that a child was missing, that he had telephoned the police, and that he had been the last person to see the child.¹ One hour later the dead body of the girl was discovered amid debris on the floor of a garage behind 1321 Harvard Street. The child's genital area was exposed and bloody; the autopsy revealed that she had indeed been raped, and that asphyxia due to suffocation was the cause of death. The girl's underpants were subsequently recovered in the alley behind 1333 Harvard Street and one of her shoes was found on the back porch of the house next door.

Under instructions from the officer in charge at the time, the police "sealed off" 1333 Harvard Street and initiated a systematic investigation — allowing no one to enter or leave the building, all male occupants were subjected to questioning and a visual search for the presence of blood in their pubic areas. During the course of this procedure two officers knocked on the door to Sheard's apartment and were admitted by him. The officers immediately observed that Sheard had scratches on his face, that he looked as though he had just taken a bath, and that he was wearing fresh but heavily wrinkled clothing. The room was in disarray, candy was strewn about on the floor, and a large damp burned area was evident on the mattress of a bed. One of the officers immediately left to summon his superiors, and upon returning Sheard was subjected to a visual search of his pubic area (apparently there were two such searches, the first being conducted by the officer remaining at the scene before the superiors arrived). Although both searches revealed the presence of what appeared to be blood, testimony as to the two inspections was suppressed, and hence not presented at the trial. The clothing worn by appellant at the time of arrest, a pair of dark green work pants found lying on the top of a hamper located in the room to which the police originally gained entry, the scattered pieces of candy, and a blanket and bedspread found in the basement of the apartment house, were seized.

Sheard was taken to police headquarters where a benzidine test (a chemical test which reacts positively to the presence of the peroxidase enzyme, an enzyme present in blood and a few other substances, notably citrus fruits) was conducted. The test was positive as to his right hand and penis. Chemical analysis revealed the presence of type O blood (Sheard has type A blood; the victim's was type O) on Sheard's jacket, the dark green slacks, the blanket and bedspread, and the victim's dress and slip. Fibers from the bedspread and blanket, which the victim's sister testified to seeing earlier in the evening in Sheard's room, were discovered on the victim's dress and slip, on all of Sheard's seized clothing, and in scrapings from the heads of both Sheard and the victim.

Essentially all of the above was admitted as evidence at trial. Sheard's defense consisted principally of his own testimony: the scratches on his face were the result of a work injury; he had taken a bath after work; he had never before seen the blanket or bedspread; the burned area on the bed was small and caused by a cigarette; he had never stated that he was the last person to see the victim; and finally, although the victim had indeed approached his room alone, instead of entering she had turned and walked away.

Appellant raises a plurality of issues on appeal, and regardless of whether all are specifically discussed, each has been accorded full consideration. We affirm.

II.

Prior to the trial, appellant moved to suppress all evidence obtained by the police as a result of their warrantless entry into his apartment, i. e., their observations which brought about his arrest, the inspection of his pubic area, the seizure of the clothes he was wearing, and the seizure of other clothing in the room. The trial judge invalidated only the pubic area inspections, relying upon the doctrine espoused in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L. Ed.2d 676 (1969).

The trial judge, weighing the admittedly contradictory testimony of the two officers who originally gained entry, held that the "entry complied with the requirements of 18 U.S.C. § 3109 and was consensual," that shortly thereafter probable cause for arrest existed, and that the seizure of clothing was either incident to the valid arrest or a plain view seizure, and valid. Appellant attacks the trial court's determination on four bases: (1) The entry was illegal for failure to comply with 18 U.S.C. § 3109 (1970); (2) the entry was illegal, lacking both probable cause and an effective waiver by the appellant of his constitutional rights; (3) as there existed no probable cause to arrest, the seizure of clothing worn by the appellant at the time of "arrest" was invalid; and (4) the seizure of clothing lying about the apartment, specifically the dark green work pants, was invalid since it was neither incident to an arrest nor in plain view. Thus, there is here raised the "plethora of litigable issues" with respect to the fourth amendment explicated by Mr. Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 476, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), yet the Gordian knot presented to us is really a granny, one not requiring Alexander's cutting edge but rather only a modicum of untangling. For, assuming a valid consensual entry, the issues of § 3109 compliance, probable cause to arrest, and plain view search are easily dispatched; once inside appellant's apartment the police conduct was manifestly proper. If, however, there was neither consent to entry nor § 3109 compliance, the latter two issues become irrelevant and the conviction must be overturned.

Obliging ourselves with a bit of backward housecleaning, we will initially assume consent in order to sweep away those issues dependent thereon, and then in part III of the opinion directly deal with the consent issue itself.

Title 18, Section 3109 of the United States Code² requires a police officer who has been refused admittance to announce his purpose and authority prior to "breaking" into a house to execute a search warrant. In Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), the validity of entry to make an arrest based upon probable cause but without a warrant was tested by criteria identical to § 3109, and in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), § 3109 was held to apply to nonforcible entry. See also Keiningham v. United States, 109 U.S.App.D.C. 272, 287 F.2d 126 (1960). Appellant now asks this court to expand the protection of § 3109 to the type of entry involved in this case, entry made during the investigation of a crime without probable cause either to arrest or search. Whatever the merits of the contention, we are not required to reach it, for effective consent to entry negates the requirements of § 3109. See United States v. Harris, 140 U.S.App.D.C. 270, 277-278, 435 F.2d 74, 81-82 (1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 152 (1971).³

Once inside the apartment the officers possessed probable cause to make the arrest. As the trial judge stated, "the scratches on the man's face, his demeanor, the presence of the candy, the condition of the bed and the room, the recent indications of some bathing or washing, under circumstances of this case, appear to the court to establish probable cause . . . ." The test for probable cause, set out in Bailey v. United States, 128 U.S.App.D. C. 354, 357-358, 389 F.2d 305, 308-309 (1967), is clearly met:

It has been said that "`the substance of all the definitions\' of probable cause `is a

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