Accarino v. United States

• Decision Date: 07 November 1949
• Docket Number: No. 10183.,10183.
• Citation: 179 F.2d 456,85 US App. DC 394
• Parties: ACCARINO v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

85 US App. DC 394, 179 F.2d 456 (1949)

ACCARINO v. UNITED STATES.

No. 10183.

United States Court of Appeals District of Columbia Circuit.

Argued October 5, 1949.

Decided November 7, 1949.

Mr. Joseph J. Lyman, Washington, D. C., for appellant.

Mr. Joseph M. Howard, Assistant United States Attorney, Washington, D. C., with whom Mr. George Morris Fay, United States Attorney, and Mr. C. Frank Reifsnyder, Assistant United States Attorney, Washington, D. C., were on the brief, for appellee.

Before EDGERTON, PRETTYMAN and PROCTOR, Circuit Judges.

PRETTYMAN, Circuit Judge.

Appellant was indicted, convicted and sentenced in the United States District Court for the District of Columbia for violations of the gambling laws of the District of Columbia.¹ In the course of the trial, certain alleged "numbers slips" and racehorse bets, taken from the person of the accused and found in his room by the police at the time he was arrested, were offered and received in evidence. There had been a motion to suppress that evidence and return the property, which motion was denied.

On October 16, 1948, two police officers, having received information that a man was "picking up numbers" (a form of organized gambling) in a certain vicinity, noticed the appellant and then trailed him as he drove around in the Northwest and Northeast sections of the City, making some ten or twelve stops to enter apartment houses or places of business. At about one-thirty o'clock, p. m., the appellant drove to and entered an apartment house at 1310 Downing Place, Northeast, and remained there. On October 18th, 20th, 21st, 22nd, 25th and 26th, officers trailed the appellant over practically the same route at the same time of day, observing him making the same stops and seeing him finally enter the apartment house at 1310 Downing Place at about the same time each day. Upon four of these days, an "under-cover man" for the police placed numbers bets with an attendant at one of the places where appellant stopped each day. On another day one of the officers looked into appellant's car while appellant was in a building on one of his stops. The officer observed several numbers slips, one of which he took.

1310 Downing Place, Northeast, is a two-story apartment house on the north side of the street. On October 26th two police officers stationed themselves in the hallway of a house on the south side of the street opposite the apartment house. They had not been trailing appellant on this particular day, but they had done so on other days. They were in plain clothes. They had no warrant, either of arrest or for search. Appellant drove up and parked on the south side of the street. He got out of the car, walked across the street, and entered the apartment house. The officers crossed the street and reached the apartment house door just about the time appellant was at the top of the stairs to the second floor. They called to him; one testified that they called, "Wait a minute, police," and the other said they shouted "and told him that we were police". The appellant entered his apartment, which was to the right of the top of the steps, and closed the door. The officers knocked on the door and shouted at the appellant, one of them testifying that they called out, "Police." The door not being opened, the officers broke it down. Upon entering, they saw the appellant standing in the middle of the room throwing papers and envelopes on a small desk. They seized these papers and also searched the appellant, finding a pad and some money in his pocket. They placed him under arrest.

The immediate question is whether the papers which were seized by the officers at the time of the arrest were properly admitted in evidence against appellant upon his trial. The Government says that the evidence was properly admitted, because it was seized as an incident to a lawful arrest. The appellant says that it was not admissible, because there was no search warrant; and that the arrest was not lawful, since the officers, being without an arrest warrant, illegally broke open the door to his dwelling place.

The Government argues that the officers had probable cause to believe that appellant had committed a felony and that, therefore, they had a right to arrest him without a warrant; that, having a right to arrest, they had a right to use whatever force was necessary to effectuate the arrest; and that the breaking of the door was necessary to make the arrest.

For a clear answer to the question presented, we need hardly go farther in the authorities than McDonald v. United States.² In that case, the accused was convicted on evidence obtained by a search made without a warrant, the indictment being for violation of the gambling laws, as in this case. The accused had been under police observation for several months. He lived in a rented rooming house. On the day of the arrest, three police officers surrounded the house, and one of them thought he heard an adding machine. One officer opened a window, climbed through, identified himself to the landlady, and admitted the other officers to the house. McDonald's room was on the second floor. The door to the room was closed. One of the officers stood on a chair and looked through the transom. He saw McDonald and also saw numbers slips, piles of money, and adding machines. He yelled to McDonald to open the door, and McDonald did so. Thereupon, the officers arrested McDonald and seized the machines, the papers, and the money. The prosecution sought to build the lawfulness of the search on the lawfulness of the arrest. The Court said that the reasoning of the prosecution ran: So far as McDonald was concerned, the officers were lawfully in the hallway; since they observed him in the act of committing an offense, they were under a duty to arrest him; therefore, the arrest was valid; and since the search was incidental to the arrest, it too was valid.

The Court held that, whether that argument was or was not logically sound, no necessitous circumstance precluded the obtaining of a warrant before the arrest and search and that, therefore, the search was illegal. The Court said:

"We do not stop to examine that syllogism for flaws. Assuming its correctness, we reject the result.

"This is not a case where the officers, passing by on the street, hear a shot and a cry for help and demand entrance in the name of the law. They had been following McDonald and keeping him under surveillance for two months at this rooming house. The prosecution now tells us that the police had no probable cause for obtaining a warrant until, shortly before the arrest, they heard the sound of the adding machine coming from the rooming house. And there is vague and general testimony in the record that on previous occasions the officers had sought search warrants but had been denied them. But those statements alone do not lay the proper foundation for dispensing with a search warrant.

"Where, as here, officers are not responding to an emergency, there must be compelling reasons to justify the absence of a search warrant. A search without a warrant demands exceptional circumstances, as we held in Johnson v. United States, supra 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. * * * We cannot allow the constitutional barrier that protects the privacy of the individual to be hurdled so easily. Moreover, when we move to the scene of the crime, the reason for the absence of a search warrant is even less obvious. When the officers heard the adding machine and, at the latest, when they saw what was transpiring in the room, they certainly had adequate grounds for seeking a search warrant.

"Here, as in Johnson v. United States and Trupiano v. United States 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, the defendant was not fleeing or seeking to escape. Officers were there to apprehend petitioners in case they tried to leave. Nor was the property in the process of destruction nor as likely to be destroyed as the opium paraphernalia in the Johnson case. Petitioners were busily engaged in their lottery venture. No reason, except inconvenience of the officers and delay in preparing papers and getting before a magistrate, appears for the failure to seek a search warrant. But those reasons are no justification for by-passing the constitutional requirement, as we held in Johnson v. United States, supra, 333 U. S. at p. 15 68 S.Ct. at page 369, 92 L.Ed. 436.

"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 the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative."

Mr. Justice Jackson, concurring in both the judgment and opinion of the Court, added his own comments, among which was: "Even if one were to conclude that urgent circumstances might justify a forced entry without a warrant, no such emergency was present in this case. This method of law enforcement displays a shocking lack of all sense of proportion. Whether there is a reasonable necessity for a search without waiting to obtain a warrant certainly depends somewhat upon the gravity of the offense thought to be in progress as well as...