United States v. McKinney

• Citation: 477 F.2d 1184
• Decision Date: 15 January 1973
• Docket Number: No. 71-1981.,71-1981.
• Parties: UNITED STATES of America v. Emmett C. McKINNEY, a/k/a Charles McKinney, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

477 F.2d 1184 (1973)

UNITED STATES of America v. Emmett C. McKINNEY, a/k/a Charles McKinney, Appellant.

No. 71-1981.

United States Court of Appeals, District of Columbia Circuit.

January 15, 1973.

Mr. Wallace L. Duncan, Washington, D.C. (appointed by this Court), was on the brief for appellant.

Mr. Harold H. Titus, Jr., U.S. Atty., Messrs. John A. Terry and James A. Fitzgerald, Asst. U.S. Attys., were on the brief for appellee.

Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge, and HARRISON WINTER^*, United States Circuit Judge for the Fourth Circuit.

PER CURIAM:

On this appeal from unlawful possession of a firearm, the central issue is the reasonableness of the seizure of the sawed-off shotgun in appellant's hotel room. The pertinent facts that emerged at the hearing, on the appellant's motion to suppress, developed that on July 30, 1970, at approximately 9 a. m., the manager of the Franklin Park Hotel noticed that the phone in room 642 (appellant's room) was off the hook, and dispatched a bellman there to replace the receiver. The bellman entered the room with a pass key, and in looking for the telephone, which was obscured by a newspaper, he observed a sawed-off shotgun lying on a night table. This was reported to the manager, who notified the police. The police went to the hotel, without a search warrant, and on arrival there, about 10 a. m., were admitted to the room by the management. They observed the gun, checked it, removed a live shell and replaced the weapon on the table.

When appellant entered the room, at about 11:20 a. m., he was arrested.

The District Court ruled that the failure to obtain a warrant was justified by the exigency and circumstances, and by the fact that, this being a transient hotel, the police reasonably concluded that they had to act quickly to avoid losing the evidence that was available. Although a warrantless entry is prima facie unreasonable under the Fourth Amendment, a warrant is not required in the case of exigent circumstances, and the court must look to the facts of the particular case to determine whether there was the requisite exigency. Warden v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970, en banc).

Dorman set forth a number of pertinent factors. The case at bar did not involve a "complacent" crime but rather a grave offense which, if not a crime of violence strictly speaking, obviously posed a danger to the community. There was strong probable cause to believe that a crime had been committed by the occupant of the room, see 22 D. C.Code 3214, 26 U.S.C. 5861(d), even though there was a possibility that a justification for possession of such a weapon might be established. The entry by the police detectives was peaceful, and during the day, and had been preceded by entries by the hotel staff. While a hotel room is entitled to privacy, the police were entitled to take into account that what was involved was a nonresident of the District of Columbia who had recently checked into a transient hotel, and, again, that this was a sawed-off shotgun, an ominous threat in and itself, cf. Epperson v. United States, 125 U.S.App.D.C. 303, 371 F.2d 956 (1967). Under these circumstances¹ we find the entry and seizure valid.

We turn to appellant's complaint of his conviction on the first count. We think this conviction is infirm and should be vacated, though not precisely for the reasons stated by appellant. However, this contention has no practical effect, since there were concurrent sentences on the first and second counts, to 2-6 years, to serve 6 months and the balance suspended, 3 years probation. And we do not think the interest of justice requires remand for resentencing on the second count.

The difficulty with Count 1 is that it charges that appellant violated 26 U.S.C. § 5861(c) and § 5871 by a knowing possession of a firearm that was made without the filing of an application to the Secretary of the Treasury as required by 26 U.S.C. § 5822. The problem is that 26 U.S.C. § 5861(c), as amended in 1968, prohibits possession of a firearm "made in violation...