Cradle v. United States

• Decision Date: 26 September 1949
• Docket Number: 9900.,No. 9899,9899
• Citation: 178 F.2d 962,85 US App. DC 315
• Parties: CRADLE v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

85 US App. DC 315, 178 F.2d 962 (1949)

CRADLE v. UNITED STATES.

Nos. 9899, 9900.

United States Court of Appeals District of Columbia Circuit

Decided September 26, 1949.

Mr. Ben Paul Noble, Washington, D. C., for appellant.

Mrs. Grace B. Stiles, Assistant United States Attorney, Washington, D. C., with whom Messrs. George Morris Fay, United States Attorney, and John D. Lane, Assistant United States Attorney, Washington, D. C., were on the brief, for appellee.

Before STEPHENS, Chief Judge, and WILBUR K. MILLER and PROCTOR, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

Lorenzo McCoy Cradle and Agnes E. Biggs were jointly indicted by a grand jury in the District of Columbia for grand larceny, and for housebreaking and grand larceny. Agnes E. Biggs entered a plea of guilty to one of the charges and not guilty to the other. She was convicted and has not appealed. Cradle pleaded not guilty to the two indictments and was convicted on both charges. He appeals.

The record contains the story of an unusually bold housebreaking and larceny. Pat J. Fiordelise, the victim, was moving his residence from 1659 Hobart Street NW. to 1850 Wyoming Avenue NW. on February 16, 1948. When the day was over, the process of moving had not been completed but had progressed far enough to permit Fiordelise and his family to spend that night at the Wyoming Avenue house. About 5:00 p. m. on February 16, he and his wife left their new home and spent the evening at the wrestling matches, leaving their two small children at home with Agnes E. Biggs. Fiordelise returned about 11:30 p. m. to find his Wyoming Avenue house in disorder and to discover that he had been thoroughly robbed.

Lorenzo Cradle and the Biggs woman had been employed as domestic servants by Fiordelise for some four or five months prior to that time. Cradle, when first employed, had given his name as Lorenzo Biggs. During the evening while the Fiordelises were away, Lorenzo hired a truck and driver and, accompanied by Agnes E. Biggs, proceeded to load into the truck a considerable quantity of furniture, wearing apparel and other articles from both the Hobart Street house and the Wyoming Avenue house.

Police officers, who had been looking for Cradle, found him on March 6, 1948, at his mother's home, an apartment on Corcoran Street. They had no warrant of any kind, but had a photograph of Lorenzo Cradle, alias Biggs, and knew he was wanted for breaking into and robbing the Fiordelise houses. The officers surrounded the house at about 3:00 a. m. and, when they knocked on the door, Cradle answered and readily admitted his identity. He was then arrested as he came out of the door, and just as readily confessed to having possession of stolen property and in effect confessed to its larceny. A large combination radio in plain view in the living room was pointed out by Cradle as one taken from Fiordelise. The other articles which one of the arresting officers testified were recovered at the apartment were not searched out by the officers, but were gathered up by Cradle and were brought into the living room by him and exhibited to the police as things he had stolen.

Three days later, both Cradle and Biggs confessed to Fiordelise in the presence of several police officers and gave full particulars of the thefts.

Some weeks before his trial, Cradle filed a motion, under Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., to suppress for use as evidence the various articles which he had exhibited to the police, on the ground that the search of his mother's apartment was illegal and that consequently the seizure of the stolen goods was unlawful. The motion did not describe the articles sought to be suppressed except to refer to them as having been "seized from him and from the residence of his mother". A hearing was had on May 7, 1948, at which evidence was introduced by the appellant. Cradle testified that on March 6, 1948, he was living in his mother's apartment. Nevertheless, the District Court held he could not complain of the alleged search of another's apartment, and that his rights were not invaded by the seizure of goods which he admitted were stolen property and therefore not his own, so the motion to suppress was denied.

On June 7, 1948, a full month after the motion to suppress had been heard and determined, the trial began in the District Court. The confessions were detailed to the jury by Fiordelise and others. Keith G. Gosman, one of the arresting officers, testified that on the night of the arrest he and his fellow officers recovered at the Corcoran Street apartment a large combination two-tone radio, a table lamp, a woman's blue suit, a woman's black raincoat, a suitcase of assorted men's and women's clothing, and an electric hot plate. He said Cradle told him at the time that those articles were among the goods he had taken from the two Fiordelise houses. The truck driver testified that he carted away from the two houses the articles which Cradle brought out, and that Cradle had employed him for that purpose.

No objection was made by the appellant to the introduction of any of the evidence just summarized, nor was any of it denied. Cradle's counsel did object, however, when the government offered in evidence five articles of personal property, basing his objection on the theory that the articles offered were obtained by an illegal search and seizure at his mother's apartment. But he offered no evidence to show that any one of the five items was seized at the apartment when he was arrested. The objection was overruled.

Appellant's several assignments of error really amount to two: (a) that the court erred in denying his motion to suppress for use as evidence the articles seized in his mother's apartment on the ground that those articles were obtained through illegal search and seizure; (b) that the court erred in allowing the introduction of evidence obtained by an illegal seizure following an unlawful search.

In our view, there was no search made by the officers at the mother's apartment. The combination radio was in plain view in the living room, and the other items were assembled there by Cradle who frankly acknowledged he had stolen them from his employer. If it be suggested that he acted under the compulsion of the presence of the police and of the fact that he was under arrest, and that therefore the officers technically and constructively made a search, the answer is they had a right to do so. Since they had reasonable grounds for believing Cradle was guilty of a felony, the arrest was lawful. That being true, it was not unlawful¹ to search the apartment, if indeed there was a search.

The Supreme Court said in Harris v. United States, 1947, 331 U.S. 145, 150-151, 67 S.Ct. 1098, 1101, 91 L.Ed. 1399:

"The Fourth Amendment has never been held to require that every valid search and seizure be effected under the authority of a search warrant. Search and seizure incident to lawful arrest is a practice of ancient origin and has long been an integral part of the law-enforcement procedures of the United States and of the individual states.

"The opinions of this Court have clearly recognized that the search incident to arrest may, under appropriate circumstances, extend beyond the person of the one arrested to include the premises under his immediate control."

If, as we think, no search was made, Cradle cannot complain that the seizure was unlawful since he admitted that the articles seized belonged to Fiordelise and not to him. And if it be conceded that technically a search was made, it was not unlawfully done because it was incident to a lawful arrest, under the holding of the Harris case.

Be that as it may, let us now assume, arguendo, that the articles were unlawfully seized at the apartment following an unlawful arrest and search, and that the trial court erred in denying the motion to suppress them for use as evidence. With that assumption, the motion to suppress should have been granted, and under Rule 41(e) the property seized should "not be admissible in evidence at any hearing or trial." Even so, the error in refusing to suppress, for use as evidence, the property recovered at the apartment did not prejudice the appellant, because no article recovered there was introduced in evidence against him, as we shall show.

As has been stated, there were just five pieces of property offered by the prosecution and received in evidence, — a portable radio, a sofa pillow, two skirts and one black and white print dress. No witness said that any one of those articles was seized at Cradle's apartment. No witness said any one of them was found in his possession or that any of them ever had been in his possession. None of the five articles received in evidence was included in the arresting officer's enumeration of goods found at the apartment. Proof for the government merely identified the five exhibits as the property of the Fiordelises.

Officer Berry testified, without objection from the appellant, that a radio "was recovered from a second-hand store where the defendant's sister had pawned or sold it." Manifestly the portable radio used as evidence was not the "large combination two-tone radio" which the officers recovered at the apartment, but was that which was found at the pawnshop. No witness identified the sofa pillow received in evidence as having been found at the apartment, nor was there any testimony tending to show that the two skirts and the black and white print dress which were introduced were among the goods recovered there.

To be sure, Officer Gosman testified that Cradle turned over to him after the arrest a suitcase containing assorted men's and women's clothing, and it is of course possible that the two skirts and the print dress introduced at the trial were in that suitcase, and so were among the articles seized at the apartment. But there is no proof whatever that the print dress or either skirt was in fact in the...