Brandon v. United States

• Decision Date: 09 July 1959
• Docket Number: No. 14464.,14464.
• Citation: 270 F.2d 311,106 US App. DC 118
• Parties: Sherman BRANDON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

106 US App. DC 118, 270 F.2d 311 (1959)

Sherman BRANDON, Appellant, v. UNITED STATES of America, Appellee.

No. 14464.

United States Court of Appeals District of Columbia Circuit.

Argued May 5, 1959.

Decided July 9, 1959.

Mr. Robert A. Marmet, Washington, D. C., with whom Mr. Paul M. Segal, Washington, D. C. (both appointed by this Court) was on the brief, for appellant.

Mr. Carl W. Belcher, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and John D. Lane and Harry T. Alexander, Asst. U. S. Attys., were on the brief, for appellee.

Before PRETTYMAN, Chief Judge, and EDGERTON, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges.

DANAHER, Circuit Judge.

Appellant was convicted on two counts of violation of the narcotics law. He claims here that the trial court erroneously ruled (1) he lacked standing to move to suppress, and (2) in any event, the search warrant was valid.

Without hearing, appellant's pretrial motion to suppress was denied. The judge ruled "Unless the defendant asserts either ownership of the seized article or control of the premises in which the seizure occurred, he had no standing to make a motion to suppress." The motion was renewed at the outset of the trial and, by stipulation of counsel, was fully heard by the judge as the trial progressed. Judge Youngdahl concluded that the appellant had failed to establish standing to move to suppress. His ruling reads:

"In his testimony appellant has stated that he had no control over the premises; that he was just in there temporarily; that he had no possession whatever of the premises; had no drugs in his possession; he knew nothing about any drugs in the place; there were no drugs in the place.

"He has completely denied the entire story of the police officer with reference to the drugs and on that basis he is a complete stranger coming into this court and attempting to move to suppress some property over which, in no way by even the remotest stretch of the imagination, he had any control whatsoever."¹

Appellant had testified that he and his friend "Bill" were to go on a picnic. He said Bill had given appellant a key to the room, later searched, and told appellant to wait there while Bill went to buy chickens. A large quantity of narcotics, "capping" equipment and paraphernalia were seized.² He denied that the narcotics were his and insisted he knew nothing about narcotics, the record of his testimony shows. "Was it your room?" he was asked. "No, sir, it wasn't my room," he replied. On cross examination he further testified that although his real name is Sherman Brandon, he also used the names "Sherman Brown" and "Sherman Miller" and had done so ever since getting out of the reformatory. He admitted earlier convictions of grand larceny, robbery, larceny of goods from interstate shipment and of violation of the narcotics laws.

I

In Jeffers v. United States, 1950, 88 U.S.App.D.C. 58, 60, 187 F.2d 498, 500, the Government had contended that Jeffers lacked standing unless he could show that he owned or controlled the premises searched and also asserted ownership of the evidence seized. We found that the true rule did not require that both such elements be established. We decided that a "person aggrieved" within the meaning of Rule 41(e), supra note 1, included one who, like Jeffers, had simply claimed ownership of the evidence seized. We recognized it to be settled doctrine that the movant must show that his personal rights had been violated. We observed that the exclusionary rule had been formulated by the judiciary in aid of the victim of unconstitutional conduct. We noted that the federal courts with unanimity had denied standing otherwise. Jeffers, we found, had satisfied the requirement as to a showing of violation of his personal rights by his claim of ownership of the seized evidence. The Supreme Court agreed. "The respondent unquestionably had standing to object to the seizure made without warrant or arrest unless the contraband nature of the narcotics seized precluded his assertion, for purposes of the exclusionary rule, of a property interest therein." United States v. Jeffers, 1951, 342 U.S. 48, 52, 72 S.Ct. 93, 96, 96 L.Ed. 59. Here, as we have observed, appellant made no such claim, and on the contrary, denied all knowledge of the narcotics.

McDonald v. United States, 1948, 335 U.S. 451, 452, 69 S.Ct. 191, 93 L.Ed. 153, discloses that McDonald was a roomer in a District of Columbia rooming house. Standing was accorded to him on that account.³ Here appellant had not alleged ownership of the premises. He was not a tenant. He was not a roomer. He was not an employee. Cf. Connolly v. Medalie, 2 Cir., 1932, 58 F.2d 629, 630. In accounting for his presence in "Bill's" room, he neither alleged nor proved a basis for the conclusion that his personal rights were invaded by the officers in their execution of the search warrant. We have repeatedly held that a movant under such circumstances is not a "person aggrieved" within the meaning of the Rule. See, for example, Jones v. United States, 1958, 104 U.S.App.D.C. 345, 262 F.2d 234, certiorari granted, 1959, 359 U.S. 988, 79 S.Ct. 1125, 3 L.Ed.2d 978; Accardo v. United States, 101 U.S.App.D.C. 162, 247 F.2d 568, certiorari denied, 1957, 355 U. S. 898, 78 S.Ct. 273, 2 L.Ed.2d 195; Gaskins v. United States, 1955, 95 U.S. App.D.C. 34, 218 F.2d 47; and almost squarely in point, Scoggins v. United States, 1953, 92 U.S.App.D.C. 29, 202 F.2d 211 and cases cited; see also, Washington v. United States,⁴ 92 U.S.App.D.C. 31, 202 F.2d 214, certiorari denied, 1953, 345 U.S. 956, 73 S.Ct. 938, 97 L.Ed. 1377; Gibson v. United States, 1945, 80 U.S.App.D.C. 81, 84, 149 F.2d 381, 384; Shore v. United States, 60 App.D. C. 137, 49 F.2d 519, certiorari denied, 1931, 283 U.S. 865, 51 S.Ct. 656, 75 L.Ed. 1469.⁵ Similar cases in other Courts of Appeals are legion. See, for example, Lovette v. United States, 5 Cir., 1956, 230 F.2d 263, 264 and cases cited.

The burden was clearly on the appellant to allege and to prove the facts necessary to sustain his position. He failed to do so, and the motion to suppress was properly overruled. Wilson v. United States, 10 Cir., 1955, 218 F.2d 754

II

Even were there error in our resolution of the issue as to "standing," supra, appellant's attack upon the search warrant must fail. He has argued a lack of "probable cause for a U. S. Commissioner to issue a search warrant under Title 33, Section 414 of the D.C. Code 1951."⁶

In Draper v. United States, 1959, 358 U.S. 307, 311, 79 S.Ct. 329, 3 L.Ed.2d 327, petitioner advanced the claim that information supplied by an informer was "hearsay," and because hearsay is not legally competent in a criminal trial, it could not legally have been considered in assessing the existence of "probable cause." The petitioner, the Court concluded, was "entirely in error." Dissenting from the Court's final conclusion, Mr. Justice Douglas, Id., 358 U.S. at page 323, 79 S.Ct. at page 338, observed as to this point:

"The Court is quite correct in saying that proof of `reasonable grounds\' for believing a crime was being committed need not be proof admissible at the trial. It could be inferences from suspicious acts, e. g., consort with known peddlers, the surreptitious passing of a package, an intercepted message suggesting criminal activities, or any number of such events coming to the knowledge of the officer. * * * But, if he takes the law into his own hands and does not seek the protection of a warrant, he must act on some evidence known to him."⁷

Here the officer did not act without a warrant. He submitted his evidence to a United States Commissioner. Thus the usual inferences which reasonable men may draw from evidence were "drawn by a neutral and detached magistrate * * *." Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436.⁸

Defense counsel at trial posed "one proposition," narrowly and specifically, whether or not the search warrant was validly issued. On that score, the trial judge conducted a careful hearing. "The judge shall receive evidence on any issue of fact necessary to the decision of the motion." Fed.R.Crim.P. 41(e). The identity of the informant was promptly disclosed,⁹ whereafter the trial judge allowed complete scope in the cross-examination of the officer.

It was developed that Officer Aiken for several years had been attached to the Narcotics Squad of the Metropolitan Police Department. On Saturday, September 14, 1957, a woman user of narcotics, who for over a year had been an informer, telephoned the officer that "Sherman and Popeye Bill were going to New York that night to bring back narcotics; and as soon as they would arrive in town, she would let me know where they went to." The woman had been arrested a number of times by the officer, was known by him through investigation to be associated with "Sherman and Popeye Bill" and with the narcotics traffic, and she had given information "from time to time that has proven reliable."

The following day, a Sunday, she telephoned again. She had been to Room No. 7 at 1620 - 18th Street, and "Sherman and Bill" had brought a quantity of narcotics there. She said Sherman would drive to the given address in a 1948 Plymouth, that the men did not live at the given address, but were to meet there that day merely long enough "to cap the stuff up." The officer then called the Commissioner and explained the circumstances. An appointment was made to meet the Commissioner later at his office.

Before meeting the Commissioner, the officer went out to verify the information. He drove to the area, parked his car around the corner and waited. He saw Brandon drive up in a 1948 Plymouth. The officer did not then know him as Brandon, but as Sherman, and he recognized the appellant as one "involved in the narcotics traffic." The officer at some distance followed him to 1620 - 18th Street and saw him enter Room No. 7. He...