U.S. v. Anderson

Citation533 F.2d 1210,175 U.S.App.D.C. 75
Decision Date22 March 1976
Docket NumberNo. 75-1318,75-1318
PartiesUNITED STATES of America, v. Willie ANDERSON, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Richard A. Solomon, Washington, D. C. (appointed by this court), for appellant.

Roberta T. Eaton, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, James F. McMullin and Charles E. Wagner, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before McGOWAN and LEVENTHAL, Circuit Judges, and McMILLAN, * United States District Judge for the Western District of North Carolina.

Opinion for the court by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

Appellant was convicted by a jury in the District Court of one count of possession of an unregistered firearm (a sawed-off shotgun) in violation of 26 U.S.C. § 5861(d) (1970). He raises a number of issues on this appeal, including the denial of his pretrial motion to suppress certain evidence, especially the barrel stock of a sawed-off shotgun which had been seized in a warrantless search of his room after he had been arrested and removed therefrom. We conclude that the barrel stock was the fruit of an unconstitutional search, and that its admission into evidence was prejudicial error requiring reversal.

I

Officers Burton and Wright of the Metropolitan Police Department testified at the suppression hearing that they were on duty at approximately 2:05 P.M. on November 21, 1974, when they were hailed by one Strother, who claimed that he had just been assaulted by a man with a sawed-off shotgun in room eight at 1434 Corcoran Street. 1 The two police officers accompanied Strother to that address, and in the course of their brief ride Strother recounted the circumstances surrounding the assault. Strother claimed to have gone to appellant's room to collect a five dollar debt that appellant allegedly promised to repay on that afternoon. Upon arriving at appellant's room, Strother found the door unlocked and appellant asleep. After trying unsuccessfully to wake appellant, Strother fell asleep on the bed beside him.

When appellant awoke he told Strother that "he (appellant) was the meanest man on 14th Street" and began to display a sawed-off shotgun. After Strother informed appellant that he should not have a shotgun in his possession unless it was properly registered, appellant became angry and Strother left the room. At that point appellant followed Strother to the street and threatened him with the sawed-off shotgun.

On the basis of this information, the two police officers entered the roominghouse at 1434 Corcoran Street and proceeded directly to room number eight. Officer Wright testified that as he reached appellant's room the door was wide open and he could see appellant sweeping the floor. According to Wright, appellant then noticed the police officers and lunged for a sawed-off shotgun which Wright saw on the bed in appellant's room. Officer Wright then told appellant to freeze. Officer Burton, who was standing slightly behind Officer Wright as they reached appellant's room, also testified that the door to the room was wide open. After he heard his partner tell appellant to freeze, Officer Burton moved up to the doorway in time to see appellant reaching for the shotgun. 2 The two police officers then entered the room and Officer Burton proceeded to handcuff appellant. At about that time they were joined by a third police officer, Officer Wagner, who advised appellant of his constitutional rights. 3 Meanwhile, Officer Wright seized the shotgun on the bed. 4

Appellant's testimony at the suppression hearing gave a markedly different version of the events leading up to his arrest. He said that he had never seen Strother before November 21, 1974, and that he awoke that day around 11:45 A.M. and found Strother in his room. According to appellant, Strother announced that he was armed and asked for appellant's money. Appellant claims that he then fooled Strother into thinking that he (appellant) had a .25 caliber automatic and chased Strother from the room. Appellant then went into the hallway of the building, noticed Strother on the second floor, and told him to leave. Strother threatened to return, and at that point appellant chased him from the building and warned him not to come back. Upon returning to his apartment, Anderson discovered that Strother had left behind a bag containing a sawed-off shotgun and five or six shells. Appellant then loaded the gun with the shells so that he would be prepared in the event Strother returned with "his boys." It was shortly thereafter that, according to appellant, six police officers broke through the door to his room and placed him under arrest.

Despite the different versions presented at the suppression hearing and at trial, appellant accepts for the purposes of this appeal the testimony of the police officers concerning the events leading up to his arrest. Moreover, there is no disagreement over the factual setting of the search that led to the discovery of the barrel stock. After appellant was removed from his third floor apartment and placed in a police transport van by Officer Wagner, the remaining police officers conducted a thorough search of the room, eventually discovering the barrel stock within a closet.

II
A. The Sawed-Off Shotgun

Appellant appears to concede in his brief that the constitutionality of the seizure of the sawed-off shotgun depends on the constitutionality of the warrantless arrest of appellant; if the arrest was constitutional, the seizure of the shotgun can be justified under the "plain view" exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564, 581 (1971); see, e. g., United States v. Peterson, 168 U.S.App.D.C. ---, 522 F.2d 661, 665 (1975); United States v. James, 147 U.S.App.D.C. 43, 452 F.2d 1375, 1378 (1971); United States v. Johnson, 147 U.S.App.D.C. 31, 452 F.2d 1363, 1372 (1971); United States v. Harris, 140 U.S.App.D.C. 270, 435 F.2d 74, 84 n. 22 (1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 152 (1971). It is appellant's contention, however, that the warrantless arrest was unconstitutional for two reasons: first, the police officers lacked probable cause for an arrest; and second, even given probable cause, there were no exigent circumstances justifying a warrantless entry into appellant's rooming house and appellant's room to accomplish the arrest.

As to the absence of probable cause, appellant argues that "it is established that where most or all of the information supporting reasonable cause for an arrest comes from sources outside the arresting officers' personal knowledge the necessity for showing the trustworthiness of the information becomes more acute." Brief at 17. We would agree that when law enforcement officials apply for warrants on the basis of information supplied by an informant, the magistrate must be supplied with adequate information indicating that the informant is both credible and reliable. United States v. Harris,403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Moreover, "(w)hether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent than where an arrest warrant is obtained." Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed.2d 441, 450 (1963).

But these requirements do not apply with equal force when the police are approached on the street by an unknown citizen who claims to have been the victim of a crime just moments before. 5 As this court noted in Pendergrast v. United States, 135 U.S.App.D.C. 20, 416 F.2d 776, 785, cert. denied, 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969), "probable cause is established where (a) the victim of an offense (1) communicates to the arresting officer information affording credible ground for believing that the offense was committed and (2) unequivocally identifies the accused as the perpetrator, and (b) materially impeaching circumstances are lacking." (Emphasis added). See Nelson v. Moore, 470 F.2d 1192, 1197 (1st Cir. 1972), cert. denied, 412 U.S. 951, 93 S.Ct. 3017, 37 L.Ed.2d 1003 (1973) ("An asserted victim of a crime is a reliable informant even though his or her reliability has not theretofore been proven or tested."). Certainly the information supplied by Strother would "warrant a man of reasonable caution in the belief" that it was appropriate to proceed to appellant's room to investigate the alleged armed assault. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). In light of the facts that Strother, who claimed to be the victim of an assault, provided the police officers with the details of the circumstances surrounding the alleged assault and identified the exact location, including room number, of the alleged offense, we conclude that Officers Burton and Wright were discharging a legitimate investigative function when they entered appellant's rooming house and proceeded to appellant's room.

Appellant next contends, citing this court's en banc decision in Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970), that even if there were probable cause to make an arrest, there were no "exigent circumstances" justifying a warrantless entry into the corridors of appellant's rooming house. We find it unnecessary to determine whether the circumstances of this case meet the "exigent circumstances" requirement established by this court in Dorman for a warrantless entry into a private dwelling for the purpose of...

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