U.S. v. Robinson

• Citation: 174 U.S. App. D.C. 351,533 F.2d 578
• Decision Date: 08 March 1976
• Docket Number: No. 74-1778,74-1778
• Parties: UNITED STATES of America, Appellant, v. Vance E. ROBINSON.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 578

533 F.2d 578

174 U.S.App.D.C. 351

UNITED STATES of America, Appellant, v. Vance E. ROBINSON.

No. 74-1778.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 14, 1975.

Judgment filed Oct. 16, 1975.

Opinion filed Feb. 24, 1976.

Certiorari Denied March 8, 1976.

See 96 S.Ct. 1432.

Carl S. Rauh, Principal Asst. U. S. Atty., Washington, D. C., for appellant. Earl J. Silbert, U. S. Atty., John A. Terry, James F. Rutherford, James F. McMullin and Jeffrey T. Demerath, Asst. U. S. Attys., Washington, D. C., were on the brief for appellant. Henry F. Greene, Executive Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellant.

Theodore J. Christensen, Washington, D. C. (appointed by this Court), for appellee Robinson.

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

LEVENTHAL, Circuit Judge:

This is an appeal by the Government from a District Court order suppressing certain evidence guns, money, clothing and other relevant items seized by the police during a warrantless search of a parked and unoccupied car, allegedly used by appellee Robinson as the getaway car following an armed bank robbery. On June 30, 1975, a division of this court affirmed the District Court's order. This court granted the Government's petition for a rehearing en banc, and heard oral argument en banc on October 14, 1975. On October 16, 1975, an en banc order of reversal was entered, ordering that the items seized from the car be allowed into evidence if otherwise admissible. We stated that an opinion would issue in due course. We begin with a statement of facts that draws heavily on the careful statement in the panel opinion.

I.

On the 21st of March, 1974, at about 11:15 a. m., a branch of the American Security & Trust Company, a federally insured institution located at 822 East Capitol Street, N.E., Washington, D. C., was robbed by four black males. Moments later a witness, Ms. Eleanor Leary, who was in the process of parking her car near the intersection of 8th and A Streets, observed four black men trotting north on 8th Street in her direction. Two of them got into a two-toned tan luxury automobile (later identified as a Cadillac Eldorado) and departed from the scene; one crossed the street and fled in a second vehicle; and the fourth continued his flight on foot. Alerted by the siren from a passing police car, Ms. Leary approached two policemen who had arrived on the scene and told them what she had seen. The police in turn relayed her information to the police communications office via their squad car radio. The officers next escorted Ms. Leary to the bank premises where she talked with several investigating detectives and then took her home.

At approximately 11:25 a. m., Officers Schlueter and Perkins, who were on routine patrol at the intersection of 6th and K Streets, N. E., received a flash message over their squad car radio directing them to be on the lookout for a "tan luxury auto occupied by two Negro males, last seen heading north on 8th Street, N.E." The officers were told that the car was wanted in connection with a possible bank robbery. Almost simultaneously, the officers saw Robinson's tan Eldorado Cadillac pass in the opposite lane heading north. The officers turned their marked squad car around and followed the Eldorado to 7th and Orleans Streets where it pulled over to the left curb of the street and came to a halt. It was raining very hard that day and the two suspects remained in the Eldorado for a few moments before alighting. Robinson, the driver, got out, looked over at the officers, smiled at them and then reached into the back seat to get a coat which he put on. Robinson and the passenger, who had no coat, then began walking south toward Morton Place, N.E., where they met a third person. Robinson and this third person walked into a house at 1111 7th Street, while the passenger continued walking down Morton Place.

After the two suspects had departed, Officers Schlueter and Perkins drove around the block and came up behind the Eldorado where they noticed a cable wire hanging from the trunk, which they took to be indicative of the trunk having been closed in a hurry, so they decided to take a closer look. When they looked through a window of the Eldorado, they saw a bundle of clothing with a blue coat on top beneath the passenger seat. At some point they tried to open the doors of the Eldorado but found that they were locked. Thinking it odd that the passenger had walked out into a heavy rain without putting on a coat, they called for assistance, and parked in a nearby alley where they could keep the car in sight.

Within fifteen minutes, a Detective Fontana and several others arrived at the location of the vehicle. Detective Fontana testified that when he arrived there were "about ten" police officers in the vicinity of the car. (Tr. 14). Meanwhile, a Detective Kaclik and an F.B.I. agent picked up Ms. Leary at her home and drove her to Orleans Place where she positively identified the Eldorado as one she had seen earlier. This identification was made approximately forty-five to fifty-five minutes after the robbery. (Compare Tr. 18 with Tr. 107). Officer Fontana then called a Mobile Crime Lab for assistance in opening the vehicle, and processing the search in it, being particularly interested in avoiding the complication of an unspecialized officer contributing his own prints (Tr. 21-22). After the arrival of the Mobile Crime Lab, Detective Fontana enlisted instead the aid of a young passer-by and paid him a dollar to reach through a partially open window of the car and lift the lock. The car was unlocked fifteen minutes after Ms. Leary's positive identification (Tr. 22). Officer Alford of the Mobile Crime Lab conducted a search of the passenger section and found that the blue coat under the front seat, previously observed through the window, was wrapped around money and a revolver. The car was then taken to the Fifth District headquarters where the police opened the trunk and found a carbine, money and a large purse-type bag similar to one carried by the bank robbers. During his search of the car, Officer Alford discovered a registered letter bearing Robinson's name and a nearby address. Police officers went immediately to this address but found the apartment empty.

In an eight count indictment filed May 2, 1974, Robinson and a co-defendant were charged with armed bank robbery, bank robbery, armed robbery, robbery, assault with a dangerous weapon, and Robinson was additionally charged with two counts of carrying a dangerous weapon. Subsequently, on May 17, 1974, Robinson filed a motion to suppress the fruits of the automobile search. His co-defendant, Michael J. Bradshaw, is not involved in the present appeal.

II.

Upon the facts just recounted both the District Court and the panel came to the conclusion that, although there was probable cause to search the automobile, there was insufficient exigency to justify the failure to obtain a warrant. Treating exigency as "basically . . . a factual question," the panel decided that the District Court's ruling was not "clearly erroneous." But the facts here are not in dispute; there is no question of credibility of witnesses, and the issue is a legal one of constitutional dimension, whether these facts present a situation that the law considers "exigent" so as to dispense with the warrant requirement. ¹

The burden is on the Government to support the legality of a warrantless search. " '(S)earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.' " Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). Furthermore "(t)he exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' " 403 U.S. at 455, 91 S.Ct. at 2032. ² The term "exigent" has become the legal designation for a set of emergency law enforcement situations excepted from the warrant requirement. These situations, in turn, are generally analyzed in terms of the various component circumstances which contribute to the need for immediate action.

III.

The Government begins with reference to the long-established "automobile exception" to the warrant requirement where exigency is premised on mobility. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Appellee argues that application of Carroll and its progeny to this case would make the automobile "exception" the rule, and turn the word "automobile" into the "talisman" it is not supposed to be. See Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Government admits that the mere fact that an automobile is involved does not dispense with the warrant, but insists it remains a significant factor.

The very term "exigency" commands that analysis be shaped by the realities of the situation presented by the record. Here we are faced with the warrantless search of an unoccupied, parked and locked car. When they parked and left the car, the defendants, in effect, were voluntarily relinquishing their vehicle's mobility, at least for the present. The police then proceeded to eliminate any realistic possibility of mobility by surrounding the car with a substantial number of officers. On its face, then, this is a case where mobility of the car posed a potential rather than a present exigency. ³

The Government responds that once it is conceded, as the panel did concede, that the potential of mobility made it reasonable to immobilize the car (an act amounting to a de facto...