U.S. v. Carter, s. 73-1922

Citation173 U.S.App.D.C. 54,522 F.2d 666
Decision Date18 July 1975
Docket NumberNos. 73-1922,73-2057 and 74-1473,s. 73-1922
PartiesUNITED STATES of America v. Lamont S. CARTER, Appellant. UNITED STATES of America v. Jerome R. PATTERSON, Appellant. UNITED STATES of America v. Jerome R. PATTERSON.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Deborah Jennings Nalls, * with whom Frank F. Flegal, Washington, D. C. (appointed by this Court), and Marsha A. Papanek,* were on the brief for appellant Lamont S. Carter.

Peter P. Broderick, with whom Larry J. Ritchie, Washington, D. C. (both appointed by this Court), was on the brief for appellant Jerome R. Patterson.

E. Lawrence Barcella, Jr., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and John O. Clarke, Jr., Asst. U. S. Attys., were on the brief for appellee. Harold H. Titus, Jr., U. S. Atty. at the time the record was filed, also entered an appearance for appellee.

Before BAZELON, Chief Judge, DANAHER, Senior Circuit Judge, and JUSTICE, ** United States District Judge for the Eastern District of Texas.

Opinion for the Court filed by District Judge JUSTICE.

Opinion filed by Senior Circuit Judge DANAHER, dissenting from reversal of the conviction of Carter.

JUSTICE, District Judge.

I. INTRODUCTION
A. The Burglary

In the early morning hours of June 29, 1971, security personnel at the Troop Command supply area of the Walter Reed Army Medical Center in Washington, D. C., discovered that the arms room of the facility had been forcibly entered. A window had been broken, a protective screen removed, and locks cut. A military police squad leader noticed two automobiles in a nearby parking lot, immediately before being notified of the break-in. He described one automobile as an intermediate sized, dark-colored, late 1960's vehicle. In this automobile, he observed one black male. 1 The other automobile was smaller than the first. Another military officer testified that the vehicles left the parking lot at a "rapid rate of speed." He described the lead automobile as large, "approximately in the Pontiac class"; the second automobile he saw was smaller, possibly a Mustang, Comet, or Falcon. This witness, Warrant Officer William Cherry, stated that he noticed the silhouettes of one person in the large automobile and two in the smaller vehicle.

The evidence revealed that fifteen M-14 rifles were missing from the arms room. Also gone were ten shotguns, one .22 calibre revolver, five M-17 gas masks, and a quantity of M-14 magazine clips, rifle cleaning equipment, and M-14 instruction manuals.

The arms room is located in a large projection of Building 63 of the Walter Reed facility. The projection is bisected by a hall, one end of which operates as an entrance to the building. On one side of the hall, the arms room and a storage room are adjacent to each other, the arms room abutting the entrance. These two rooms are of equal depth.

A large room, known as the linen exchange area, is contiguous to the storage room. The hall passing in front of the arms room and storage room leads into an open area in the linen exchange area, which serves as a passageway across this end of the room; the hall resumes at the end of the passageway. At the other end of the linen exchange area, two doors, opening to the outside, are set opposite each other in the side walls of the room. The linen exchange area equals the combined width of the arms room and storage room and is half again as deep as these two rooms, as measured from the hall and passageway. None of these rooms are connected with the others except by the hall.

In the linen exchange area, three long tables, parallel to each other but apparently separated by several feet, extend perpendicular to the hall and passageway. A wine bottle full of gasoline, with a wick a partially scorched rag protruding from the top, was discovered in the space between the two tables nearest the storage room, approximately even with the two outside doors. The device fits the description of a "Molotov cocktail", as defined in the District of Columbia Code. 2

A laundry room is situated in Building 63B, which is near Building 63. This room, called a "washateria", was generally open around the clock before the burglary. An inspection of the area near the washateria turned up a large bolt cutter and a crowbar.

The various charges of which appellants stand convicted were the outgrowth of these events.

B. Identity of the Appellants

Multi-count indictments were returned against the appellants, Marzell Peterson, Lamont S. Carter, and Jerome R. Patterson, in 1972. A superseding indictment charged them with a variety of offenses under the District of Columbia and United States Codes. In May of 1973, all three appellants were brought to trial; the conspiracy count of the indictment had been severed. Appellant Carter was convicted of second degree burglary while armed, 3 theft of government property, 4 arson, 5 and possession of a Molotov cocktail; 6 he was sentenced to serve five to fifteen years in prison. Appellant Peterson, who was found guilty of one count of receiving and concealing government property, 7 was sentenced to a term of ten years. 8 Appellant Patterson was the only one of the three as to whom the jury could not reach a verdict. On June 27, 1973, having been re-tried, Patterson was convicted of conspiracy to receive and conceal government property, 9 but acquitted as to the five substantive counts of the indictment. He was sentenced to serve a term of from one to five years. An appeal is taken from each of these convictions. The contentions of appellant Peterson are treated in a separate opinion by Judge Danaher in United States v. Peterson, 169 U.S.App.D.C. ---, 522 F.2d 661 (1975).

II. APPELLANT PATTERSON

Appellant Patterson urges four points of error in this appeal, two of which we find to be meritorious. The first issue for consideration pertains to the admissibility of certain evidence seized during a search of his residence.

A. The Search and Seizure

Armed with a warrant for the arrest of appellant Patterson, special agents of the Federal Bureau of Investigation arrived at 4033 Ely Place, S. E., the appellant's home, on the morning of August 10, 1972, at about 9:00 o'clock. They had no search warrant for this residence.

Special Agent Thomas Dowd posted himself outside the rear of the premises; other special agents entered through the front door and arrested Patterson near the front of the house. While appellant Patterson was being placed under arrest, another special agent admitted Dowd, through the back door, into the kitchen area of a shed that was attached to the house. Once inside, Dowd immediately went through the kitchen area to an open doorway, which was the entrance to a narrow flight of makeshift stairs. After ascending the stairs, he came into an open attic. There, he observed a pile of shopping bags, cardboard boxes, blankets and luggage on the floor of the attic near a corner. Dowd testified that he feared a sniper was hiding behind the pile, and that he approached it with caution. Testifying further, Dowd stated that, in order to reach the corner, he found it necessary to move an open, two-handed shopping bag; in the process of moving the bag, he glanced down and observed a quantity of M-17 military gas masks, M-14 ammunition clips, and a white pouch with "military type" writing on it. (The pouch was later found to contain five gun cleaning kits.) Dowd did not find anyone behind the pile. The other special agents likewise failed to discover anyone in the house, aside from appellant Patterson.

After making an inventory of the items found in the attic, the special agents obtained a search warrant. It was based, in significant part, on information gained from this initial search. 10 After being informed that the warrant had been issued, the special agents left appellant's home with the seized items. Nothing else was seized during subsequent searches of the premises.

The court below initially granted appellant Patterson's motion to suppress the items seized as a result of the warrantless search, finding that the search exceeded the permissible scope of a "search incident to an arrest" delineated under the doctrine of Chimel v. California. 11 The trial judge's comments in the record make it clear that, in so ruling, he did not find that Special Agent Dowd was without authority to enter the attic; rather, the trial judge determined that Dowd's actions, once in the attic, were outside the bounds prescribed by Chimel. After reconsideration of the motion to suppress, the trial judge reversed his previous ruling, based on the holding in United States v. Wright, 12 and the seized items were admitted into evidence against appellant Patterson. While we are troubled, as was the trial judge, with the scope of the attic search and with application of the "plain view" doctrine to this set of facts, we need not reach this issue, for we disagree, in the first instance, with his finding that Special Agent Dowd was justified in entering the attic without benefit of a valid search warrant.

The Fourth Amendment's mandate of "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the . . . things to be seized" contemplates that, before a search warrant may be issued, a determination be made by a neutral and detached magistrate of whether these requirements have been met. 13 As the Supreme Court said in McDonald v. United States:

We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce...

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