Ford v. United States, 17835

• Decision Date: 24 August 1965
• Docket Number: 17836.,No. 17835,17835
• Citation: 352 F.2d 927,122 US App. DC 259
• Parties: James E. FORD, Appellant, v. UNITED STATES of America, Appellee. George KIMBLE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

122 US App. DC 259, 352 F.2d 927 (1965)

James E. FORD, Appellant, v. UNITED STATES of America, Appellee.

George KIMBLE, Appellant, v. UNITED STATES of America, Appellee.

Nos. 17835, 17836.

United States Court of Appeals District of Columbia Circuit.

Argued June 15, 1965.

Decided August 24, 1965.

Messrs. Addison Bowman, Washington, D. C., and Eugene Siler, Williamsburg, Ky. (both appointed by this court) for appellants.

Mr. Allan M. Palmer, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and FAHY, WASHINGTON, DANAHER, BURGER, WRIGHT, McGOWAN, TAMM and LEVENTHAL, Circuit Judges, sitting en banc.

FAHY, Circuit Judge, with whom Chief Judge BAZELON and Circuit Judges WASHINGTON, DANAHER, BURGER, WRIGHT, McGOWAN, TAMM, and LEVENTHAL join:

Appellants were convicted of robbery in violation of 22 D.C.Code § 2901. The trial court granted leave to appeal in forma pauperis and the appeals have been consolidated in this court. Several appointed counsel were at different times permitted to withdraw. However, when the appeals were heard by a division of this court oral arguments were presented on appellants' behalf and their pro se briefs were available. The court entered an order reciting that the record appeared inadequate to permit proper review of the legality of appellants' arrests without warrants. The record was accordingly remanded to the District Court with directions to hold a hearing and make factual findings on this issue.¹ Such a hearing was held and its transcript is now before us, with a memorandum of the trial judge 240 F.Supp. 648 containing his findings and conclusion. We have reheard the cases en banc, with appellants represented by counsel we appointed. They and the United States Attorney at the request of the court have addressed themselves particularly to the questions whether under the Fourth Amendment to the Constitution or under our supervisory jurisdiction an arrest warrant is or can be required where it is practicable to obtain one, and whether it was practicable in this case to obtain a warrant before making the arrests. The need for an answer to these questions was thought to grow out of the admission in evidence of a pistol seized by the arresting officers, who had no warrant, as incidental to the arrest of Kimble, and the denial of a motion to suppress this evidence on the ground that the warrantless arrest was illegal.²

The facts as developed on the motion to suppress and at the hearing on the remand are that the robbery occurred at about 4:30 a. m. August 10, 1962, at a tourist home located in this city. Two men participated, one of whom used a pistol in aid of the robbery. A Miss Williams was required to open the money locker, from which one of the men took about $85. About ten minutes after it occurred Detective Harris and Officer Caldwell, of the Robbery Squad, responded to a report of the robbery. They were advised by one Winston, "a good informant of the police department," and by a person named Dodson, that appellants had been in Winston's "place" shortly before the robbery and had asked Winston to accompany them on a "hustle." Winston and Dodson also told the police that they saw both appellants running past Winston's place and through an alleyway at about the time of the robbery. The officers brought Miss Williams to Police Headquarters where she identified Kimble's picture from among a number of others shown to her. His photograph was also identified by Winston and Dodson. Early the next morning, August 11, the officers received a telephone call from Winston to the effect that appellants were then sitting in a Buick parked in front of Winston's house. The officers immediately went to the scene. When they arrived the Buick, with four occupants, was nearby but had been moved a block before arrival of the officers. They then arrested its occupants. Ford was in the driver's seat with Kimble sitting next to him. One of the officers removed a pistol, the questioned evidence, from the floorboard of the automobile where it rested on a white towel at Kimble's feet. The arrests occurred at about 7:55 a. m. At a lineup at about 9 a. m. Miss Williams identified both appellants as the robbers.

There is no doubt, and it is not seriously disputed, that there was probable cause for the arrests. If they were lawful the seizure of the pistol was also lawful, and the motion to suppress it as evidence was properly denied.

At the hearing on the remand the United States Attorney introduced no evidence and the defense called two witnesses who had testified at the trial. The statement of the trial judge on the remand is set forth in part in the margin.³

We find no case holding that a warrantless arrest in a public place for a felony, supported by probable cause, offends the standard of validity prescribed by the Fourth Amendment.⁴ The standard is reasonableness. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L. Ed.2d 777. In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 a warrantless arrest on probable cause was sustained notwithstanding it appears there was time to obtain a warrant. The Court relied upon the statutory authority of the arresting officer⁵ to make "arrests without warrant * * where he has reasonable grounds to believe that the person to be arrested has committed or is committing" a violation of the Narcotic Laws. The Court said the question was whether the officer had "probable cause" within the meaning of the Fourth Amendment and "reasonable grounds" within the meaning of the statute. Finding he had such cause and grounds the arrest was upheld as lawful and the search of Draper's person valid as incidental to the arrest.⁶ And see Kurtz v. Moffitt, 115 U.S. 487, 504, 6 S.Ct. 148, 29 L.Ed. 458; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; and the statement of the Court in Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543:

The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony * * *.

This statement, however, is followed in Carroll by the Court's explanation that the public safety and the due apprehension of criminals charged with heinous offenses required that such arrests be made "at once" without warrant. Such an "at once" reason for the rule would not preclude a requirement that a warrant be obtained when it is practicable to do so. But the Court has not established such a requirement as to arrests. It is true that the practicability test was applied to a warrantless search and seizure in Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, over the dissent of Chief Justice Vinson, for himself and Justices Black, Reed and Burton, finding the search lawful as incidental to a lawful arrest. And in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, Trupiano was overruled to the extent that it "requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest." 339 U.S. at 66, 70 S.Ct. at 435.

In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, Toy's arrest was held invalid only because not supported by probable cause or "reasonable grounds," not because a warrant had not been obtained. As in Draper the provisions of 26 U.S.C. § 7607, as well as probable cause, were advanced as the bases for the arrest. The Court cited Draper to the effect that the statutory "reasonable grounds" and the constitutional "probable cause" were substantially the same. There was no intimation that the invalidity of the arrest of Toy was due also to the absence of a warrant which could have been obtained. Mr. Justice Douglas' concurring opinion is significant in this regard:

While I join the Court\'s opinion I do so because nothing the Court holds is inconsistent with my belief that there having been time to get a warrant, probable cause alone could not have justified the arrest of petitioner Toy without a warrant.

371 U.S. at 497, 83 S.Ct. at 422. This view was not expressed by the Court.

The practicability test is also absent from our own decisions. Mills v. United States, 90 U.S.App.D.C. 365, 196 F.2d 600, cert. denied, 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643; Willis v. United States, 106 U.S.App.D.C. 211, 271 F.2d 477, cert. denied, 362 U.S. 964, 80 S.Ct. 881, 4 L.Ed.2d 879; Stephens v. United States, 106 U.S.App.D.C. 249, 250, 271 F.2d 832, 833, where Judge Bazelon said:

The District of Columbia follows the common law rule that a law officer may arrest without a warrant if * * * there is probable cause to believe that a felony has been committed and that the arrested person committed it * * *.

And see Smith v. United States, 103 U. S.App.D.C. 48, 254 F.2d 751, cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552. Similar cases in other courts, federal and State, are legion.

In Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666, the invalidity of Gatlin's arrest was lack of probable cause; and the arrest of Miller, a co-defendant, was also held to be unsupported by probable cause. There is, however, a discussion in footnote 10 in Gatlin of the failure of the officers in arresting Miller to obtain an arrest warrant. We commented that the officers,

failed to place their information before a "neutral and detached magistrate" who obviously is in a better position to determine probable cause than an "officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 * * * This failure alone, absent exceptional circumstances, may be sufficient to invalidate this arrest.

The arrest thus referred to was in the attic of a home which had been...