Cormier v. United States, 2060.

• Citation: 137 A.2d 212
• Decision Date: 30 December 1957
• Docket Number: No. 2061.,No. 2060.,2060.,2061.
• Parties: Joseph F. CORMIER, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

Page 212

137 A.2d 212

Joseph F. CORMIER, Appellant, v. UNITED STATES, Appellee.

No. 2060.

No. 2061.

Municipal Court of Appeals for the District of Columbia.

Argued October 28, 1957.

Decided December 30, 1957.

David F. Smith, Washington, D. C., for appellant.

Harry T. Alexander, Asst. U. S. Atty., Washington, D. C., with whom Oliver Gasch, U. S. Atty., Lewis Carroll and Fred D. Durrah, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

QUINN, Associate Judge.

Appellant was charged in two informations with the carrying of two pistols on a single occasion without a license for either one.¹ A jury convicted him on each charge, and thereafter he was sentenced to 180 days for each offense, the sentences to run consecutively. On appeal nineteen assignments of error are urged, many of them overlapping and repetitive. The following points are of sufficient substance to require discussion by us:

I

Appellant contends that the lower court erred in denying his motion to suppress the guns as evidence and in not directing an acquittal at the close of the evidence on the theory that they were obtained as the result of an illegal search.

The evidence in behalf of the prosecution showed that two police officers were patrolling their beat one evening when they were approached by a "hysterical" nine-year-old girl. She stated that she had gone to look for her fourteen-year-old sister in a certain house, that she had been chased out, that there was a man with a gun in the house, and also another girl who was in bed with a man. She described the man with the gun and said that his car, bearing Virginia license plates, was parked in front of the house. The officers proceeded to the address given, saw the car parked in front, and knocked on the door. A person inside asked, "Who is it?" and one of the officers said, "Police. Open the door." The person then walked away without opening the door. The officer "twisted the knob, pushed on it; the door came open." They entered the house, walked through the hallway and into the front room where they observed appellant, two boys, another man, and two girls, one of whom proved to be the sister of the original complainant. According to the officer the following events occurred:

"I asked everybody to stand up, the men. I was referring to the men; and when the men, everybody stood excepting the defendant, at that time I walked over to him and asked, `Who has the gun?' and he started for his pocket, I caught his hand, put my hands in his pocket, his topcoat pocket, and pulled, er ah, a .32 — I believe it was a .32-caliber automatic, foreignmake automatic —

* * * * * *

"And at that time I told my partner, `This is the man got the gun,' and my partner caught the defendant from the other side and felt his pockets, and he says, `He's got another gun,' pulled the gun out of his pocket."

In response to a question from defense counsel, the officer first testified that he arrested appellant on the basis of the original complaint, then stated he arrested him as a result of finding the two guns on his person. At no time did the officers have either an arrest warrant or a search warrant.

Appellant's position is that there was no probable cause for his arrest, and consequently the arrest was illegal and the search as an incident to the arrest was correspondingly illegal; that the forced entry into the house without a warrant was illegal because there was no showing of necessitous circumstances to justify it, nor did the officers properly announce the cause of their demand for entry; and that the arrest followed, rather than preceded, the search of his person, and was based on what the search revealed.

We believe that the officers had probable cause to arrest appellant. By virtue of Code 1951, § 23-306(a) and (b) (Supp. V), police officers are empowered to make an arrest for a violation of Section 22-3204 "as in the case of a felony, upon probable cause that the person arrested is violating the section involved at the time of the arrest." The rule with respect to what constitutes probable cause has been stated many times. It means more than bare suspicion; it exists where the facts and circumstances within the officers' knowledge are sufficient in themselves to warrant a reasonable belief that an offense has been or is being committed.² We think the information imparted to the officers here by the girl was sufficient to induce a reasonable belief of a violation. Compare, for example, Dickerson v. United States, D.C.Mun.App.1956, 120 A.2d 588, 590, in which an officer arrested the defendant after bumping him with his elbow and feeling a hard object, and this court held that

"* * * The time of night, the evasive and suspicious nature of defendant's behavior, and what the officer felt on contact with defendant, all combined to establish probable cause and justify the arrest."³

In the instant case, the officers had definite knowledge that a man fitting appellant's description was carrying a gun, under highly suspicious circumstances, and consequently the arrest was proper.

We need not decide whether the forced entry into the house without a warrant was improper, for we do not believe that appellant has any standing to challenge it. Appellant did not reside in the house; he was merely a guest. While the Supreme Court has left open the question of whether a guest has standing to complain of an illegal entry,⁴ the United States Court of Appeals for the District of Columbia Circuit has ruled on several occasions that he has no such right.⁵

Nor can we agree that the arrest followed the search and resulted from it. While the officer never specifically told appellant prior to the search, that he was under arrest, his actions in ordering him to stand up and in seizing his hand clearly constituted a restraint on his liberty and thus an arrest.⁶ The inconsistencies in the officer's testimony, on which appellant relies, presented at most a factual question to be considered in connection with the other evidence. The lower court resolved this issue against appellant, and we think its conclusion was supported by the evidence.

II

Several assignments of error center upon the introduction into evidence and use by the government of certain F. B. I. reports and records for the purpose of proving alleged prior convictions of appellant. For reasons hereinafter stated, we hold that the admission and use of such records were error, but that it does not require reversal by us.

Although the case took several days to try and the record before us is voluminous, the basic facts were relatively simple. The prosecution's evidence indicated that appellant was carrying the guns, and it was stipulated that he did not have a license for either one. Appellant took the stand and admitted carrying the guns. He testified that he was employed as the manager of a service station located in Arlington, Virginia. On the evening in question he left the service station carrying with him a loaded automatic pistol which he owned, and a second loaded pistol belonging to a customer which he had "volunteered" to clean and repair. He took a taxicab to the house in question in order to transact some business with the occupant, intending to return to his own home in Virginia and leave the guns there.

Appellant attempted to establish a defense based on Code 1951, § 22-3205, which provides in part as follows:

"The provisions of section 22-3204 shall not apply * * * to any person engaged in the business of manufacturing, repairing, or dealing in firearms, or the agent or representative of any such person having in his possession, using, or carrying a pistol in the usual or ordinary course of such business or to any person while carrying a pistol unloaded and in a secure wrapper from the place of purchase to his home or place of business or to a place of repair or back to his home or place of business or in moving goods from one place of abode or business to another."

We think, however, that appellant's own testimony precludes assertion of these defenses, for he stated that repairing guns was only his hobby and that he had "volunteered" to work on a customer's gun; and secondly, even assuming that he was merely carrying the guns between two lawfully excepted places, he acknowledged that they were not unloaded and not in a secure wrapper, as required by the statute. It will thus be seen that all of the basic facts necessary to support a conviction here were not only proved but admitted.

With the case in this factual posture, the prosecutor then attempted to prove certain prior convictions of appellant for the purpose of impeaching his "credibility." On cross-examination when asked if he had been convicted of a number of crimes, appellant admitted one conviction but claimed that it had been reversed on appeal, and denied the others. In rebuttal, the government introduced, over objection, an F.B.I. record of various arrests and convictions of appellant.

The admission and use of these records were clearly erroneous. Cod...