Collins v. United States.

• Decision Date: 29 January 1945
• Docket Number: No. 240.,240.
• Citation: 41 A.2d 515
• Parties: COLLINS et al. v. UNITED STATES.
• Court: D.C. Court of Appeals

41 A.2d 515

COLLINS et al.

v.UNITED STATES.

No. 240.

Municipal Court of Appeals for the District of Columbia.

Jan. 29, 1945.

Appeal from the Municipal Court for the District of Columbia, Criminal Division.

William Collins, alias Roscoe Peter Collins, and Neshan G. Shamigian were convicted of operating a disorderly house, and they appeal.

Reversed with instructions to award a new trial.

T. Emmett McKenzie, of Washington, D. C. (Denny Hughes, of Washington, D. C., on the brief), for appellants.

John J. O'Leary, Asst. U. S. Atty., of New York City (Edward M. Curran, U. S. Atty., and John P. Burke, Asst. U. S. Atty., both of Washington, D. C., on the brief), for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

CAYTON, Associate Judge.

The appellants, Shamigian as owner and Collins as night clerk of a small downtown hotel, were convicted on a charge of operating a disorderly house. ¹ In appealing they have assigned several errors. These we will discuss not in the order in which they appear in the brief but in a sequence best contributing to brevity and continuity in this discussion.

1. Refusal to Direct Verdict.

The sufficiency of the evidence was challenged by motion for an instructed verdict. We therefore recite the substance of the evidence tending to establish guilt.

One of the police officers testified that some months before the arrest he had told both defendants that he had been picked up and checked into the hotel by a prostitute and had warned them to ‘clean up’ the hotel.

Four people who lived close by testified that they had seen girls pick up men on the street and take them into the hotel, one girl going in as many as eight times in one evening, each time with a different man. One of these witnesses testified that he had complained of this situation to defendant Shamigian who had replied, ‘There is not anything I can do about it.’

A sergeant of Military Police said he had entered the hotel with a companion and two prostitutes, and after discussing with defendant Collins the price of a room for the four of them, they had registered as man and wife and that the girls were then arrested by local police officers.

A woman who admitted being a prostitute testified that she had arranged with defendant Collins to work out of the hotel, and to pay $2 for the use of a room for fifteen or twenty minute periods and larger amounts for longer periods; and that she was usually assigned the same room.

Three police officers testified that during their observation of the hotel over a period of months they had seen known prostitutes enter and leave the hotel with men and that on several occasions a girl made repeated trips in and out of the hotel with different men; that many other couples entered the hotel without baggage and stayed only for short periods of time; that all such couples, including the prostitutes, stopped on their way in to talk with defendant Collins or to sign the register.

Naturally, we are not considering the weight or effect of defendants' denials: we examine the evidence only to test it for sufficiency. And we think it easily and plainly meets that test. ‘The trial court is not justified in directing a verdict where there is substantial evidence upon which the jury may base a conviction.’ Sleight v. United States, 65 App.D.C. 203, 82 F.2d 459, 460.

2. Refusal to Suppress or Exclude Evidence.

Appellants charge that the trial judge erroneously refused to suppress and later refused to exclude evidence as to what the officers saw when they raided the hotel. This was the situation: One Allen, a police officer detailed to the vice squad, had been investigating the hotel for several months. He recited his observations in an affidavit which formed the basis for a warrant of arrest of the two defendants. No search warrant was sought or obtained. One night shortly before midnight a large squad of police officers (estimated as high as sixty men) raided the hotel. Defendant Collins was immediately placed under arrest, and records in a desk were seized. The officers proceeded to make a room-to-room search of the hotel. They were permitted to testify that they saw numerous couples in various rooms, some undressed and some hastily dressing. This, appellants say, constituted an unreasonable search under the IVth Amendment and the evidence thus secured should have been suppressed on motion or excluded on objection. We think otherwise.

We need not of course repeat that a search may be made only under a valid search warrant or as an incident to a lawful arrest. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Marron v. United States, 275 U.S. 192, 48 S.Ct. 206, 72 L.Ed. 1016. Nor is there any question that even in connection with a valid arrest a search is unlawful if it is shown to have been merely ‘exploratory and general and made solely to find evidence of respondents' guilt.’ United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 423, 76 L.Ed. 877, 82 A.L.R. 775; Go-Bart Importing Company v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374. But when the search bears a reasonable relationship to the arrest, such as to find gambling equipment or other contraband, evidence secured during the search is admissible. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Marron v. United States, supra. In testing the reasonableness of the search all circumstances must be considered. Go-Bart Importing Company v. United States, supra. Here the police department had made a long, careful and thorough preliminary investigation which plainly indicated that the hotel was being used for disorderly purposes and that misdemeanors were being committed there continually. Those in charge of the arrest were therefore justified in organizing a raiding squad sufficiently large to make all necessary and proper arrests.

We agree that a large squad of policemen was not necessary to take two defendants into custody. But as we have already indicated the police were not required merely to arrest the defendants, consider their duty done and ignore misdemeanors being committed in various rooms throughout the hotel building. A similar situation was presented in Beard v. United States, 65 App.D.C. 231, 82 F.2d 837, 841, certiorari denied, 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1382. There the police raided a gambling establishment. They did not find the person for whom the warrant had been issued, but arrested some 13 other persons. Holding the search and arrests proper the court said:

‘The information the police had was sufficient to put them on notice the place was being used for gaming. This was enough to make the subsequent entrance and arrest lawful. The arrests being lawful, it was equally lawful to search the place and to use the incriminating things found as evidence in the prosecution; for ‘when a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.’ Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 287, 69 L.Ed. 543, 39 A.L.R. 790; and see, also, Marron v. United States, 275 U.S. 192, 198, 48 S.Ct. 74, 72 L.Ed. 231; where the court said, in a seizure under the National Prohibition Act, the authority of the officers to search and seize the things relating to or constituting the offense extends to all parts of the premises used for the unlawful purpose.' (Emphasis supplied.)

In the case before us the officers were properly permitted to tell what they saw while making the search.

Also, we may note in passing that a hotel is a public place and search thereof is not so rigidly restricted as search of a private home. Smith v. United States, 70 App.D.C. 255, 105 F.2d 778; Ludwig v. United States, 7 Cir., 3 F.2d 231. We are satisfied that what was done in this connection and that what was related concerning it at the trial reveals no violation of the IVth Amendment.

3. The Instructions to the Jury.

Appellants criticize the judge's charge to the jury as ‘confusing and misleading and [was] so delivered as to be susceptible of different intendments.’

We have studied the charge, which consumes some 18 pages of the record. It is not a model of clarity. It starts out by telling the jury that the evidence established and that defendant Shamigian admitted that the hotel was operated as a disorderly house. This statement was immediately challenged by counsel and corrected by the trial judge. The charge contains much that is confusing and some language seemingly self-contradictory in nature; but all the essentials to be charged in a case of this kind are there, and we cannot say that it is tainted with prejudicial error.

In any event, however, appellants offered no written instructions and voiced no objection when the charge had been completed. On the contrary, when the trial judge asked at the end of his charge ‘does counsel have anything further?’ the response was ‘I think that is all; thank you.’ Thus, though counsel was given the opportunity to point out errors in the charge or to suggest additions or modifications therein, he did neither. This was not in keeping with our Rule 13 which while abolishing the requirement of formal exceptions, yet requires that a party make known to the court the action he desires taken or such objections as he may have. Therefore, in keeping with the decided cases we hold that the objection, being presented in this court for the first time, comes too late. ²

4. Limiting Right to Cross-Examine a Government Witness.

In testifying for the Government, a police officer had stated that he needed to refer to his notes to refresh his recollection in order to answer certain specific questions. When the prosecutor asked him when he had made the notes the trial judge interrupted to ask, ‘What difference would it make?’ Defense counsel protested that ‘it would make...