Keiningham v. United States

• Decision Date: 10 November 1960
• Docket Number: No. 15730-15734.,15730-15734.
• Citation: 109 US App. DC 272,287 F.2d 126
• Parties: Thomas C. KEININGHAM, Appellant, v. UNITED STATES of America, Appellee. William R. ROBEY, Appellant, v. UNITED STATES of America, Appellee. Harry A. KAUFMAN, Appellant, v. UNITED STATES of America, Appellee. Donald L. WASHINGTON, Appellant, v. UNITED STATES of America, Appellee. Harold SNOWDEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

109 US App. DC 272, 287 F.2d 126 (1960)

Thomas C. KEININGHAM, Appellant, v. UNITED STATES of America, Appellee.

William R. ROBEY, Appellant, v. UNITED STATES of America, Appellee.

Harry A. KAUFMAN, Appellant, v. UNITED STATES of America, Appellee.

Donald L. WASHINGTON, Appellant, v. UNITED STATES of America, Appellee.

Harold SNOWDEN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 15730-15734.

United States Court of Appeals District of Columbia Circuit.

Argued September 19, 1960.

Decided November 10, 1960.

Petition for Rehearing Denied January 10, 1961.

COPYRIGHT MATERIAL OMITTED

Mr. Kenneth D. Wood, Washington, D. C., for appellants.

Mr. Maurice R. Dunie, Asst. U. S. Atty., at the time of argument, with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

Before EDGERTON, DANAHER and BASTIAN, Circuit Judges.

Petition for Rehearing En Banc Denied January 10, 1961.

BASTIAN, Circuit Judge.

Appellants Keiningham, Robey, Kaufman, Washington and Snowden were convicted, after trial by the court without a jury, of violating the District of Columbia gambling laws.

On a number of occasions during the period from June 17, 1959, to July 10, 1959, a police officer in plain clothes observed the movements of appellants (with the exception of Kaufman) and, on five separate days, they were seen entering 1106 Eighteenth Street, N. W., which is one in a series of row houses each of which is connected by party walls to the house on either side. On the morning of July 10, 1959, the officer described his observations to the United States Commissioner, who then issued arrest warrants for all of the appellants, except Kaufman,¹ and a search warrant covering 1106 Eighteenth Street, N. W.² On the afternoon of the same day, eight police officers proceeded to those premises to execute the warrants.

Officer Carter identified appellants Keiningham, Robey, Washington and Snowden as they approached and entered 1106. In the meantime, lookouts had been posted at the rear of the house to insure that no one who entered could leave unobserved. The officers entered the premises by the front door, which was open, and were immediately confronted by two doors, one leading to the downstairs part of the house and the other leading upstairs. They knocked on the door to the downstairs portion, made a proper announcement, and were admitted. A search showed that the men sought were not present there.

The officers then knocked on the door leading to the second floor, and again made a proper announcement. Receiving no response, they forced the door and proceeded to search the second floor. Again the officers discovered that the men they had observed entering the premises only a short time before were not present. At this point, the officers proceeded to the second floor rear porch and observed appellant Keiningham's car parked in the back yard and a check with the officers stationed outside showed that no one had left the house. The officers then observed, on one side of the porch, a partition between 1106 and 1108 Eighteenth Street, N. W., in which there was a freshly cut door, and "tools lying all around." The police lieutenant in charge testified:

"I went to the door and there was what I would identify as an oblong type of metal knob that appeared to be part of the locking device for the door, which I tried. It turned, but the door did not open. I then pushed on the door and of course the partition was very flexible, and I felt that the door was probably stuck because of the way that — * * * I then pushed on the door, using more strength, and the door actually opened."

The officers then saw that this door led to the second floor rear porch of the next house, 1108 Eighteenth Street, N. W. They made no announcement that they were police officers, but proceeded through the door and then looked through the glass pane in a door leading from the porch of 1108 to the inside of those premises. Through a slit in a shade drawn over the pane, the officers were able to see and identify appellants, who were busily conducting a numbers operation. The officers knocked on the door and announced: "Police, we have arrest warrants for gambling violations." When appellants began to run in the opposite direction, the officers forced the door open, arrested appellants, and seized papers, numbers slips, adding machines, and other gambling paraphernalia.

Prior to trial, appellants made a timely motion to suppress the evidence thus seized, which was denied. The motion was renewed at the close of the Government's case in the trial court and again it was denied. Appellants offered no evidence. They were found guilty and this appeal followed.

The Government contends that, since appellants were using the two houses as a single unit, the search warrant for 1106 should somehow be construed to embrace 1108 as well. It seems to be the Government's theory that 1108 became part of 1106 because of the use to which the two houses were put by appellants. This contention is unsound. We know of no clause in the warrant issued extending the authority granted therein in the event of unforeseen circumstances,³ and it is well settled that search warrants must be strictly construed. The authority to search is limited to the place described in the warrant and does not include additional or different places.

Appellants contend that, under the authority of McKnight v. United States, 1950, 87 U.S.App.D.C. 151, 183 F.2d 977, the police officers can not justify a search of 1108 as incident to a lawful arrest under the arrest warrants. Under the view we take of this case, it is unnecessary for us to decide the applicability of McKnight to these facts.

The officers left premises 1106 and entered premises 1108 at the time they opened and passed through the door in the partition separating the porches of the two houses. We need not consider whether the arrest warrants, together with a proper announcement, would have justified the officers in breaking and entering 1108. Breaking and entering without an announcement was clearly illegal, and the improper entry renders the subsequent search invalid. A long line of decisions of the Supreme Court and of this court on search and seizure emphasize the individual's right to privacy in his home. Surely that right requires police officers who seek to invade that privacy at least to knock and announce themselves before barging in. See Miller v. United States, 1957, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332; Gatewood v. United States, 1953, 93 U.S. App.D.C. 226, 209 F.2d 789; cf. Ellison v. United States, 1953, 93 U.S.App.D.C. 1, 206 F.2d 476. The embarrassing consequences which could easily flow from unannounced intrusions are numerous. See Mr. Justice Jackson's concurring opinion in McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153.

Nor need we here decide whether a search of 1108 without either a search warrant or an arrest warrant might have been so made as to be "reasonable" under United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. For it is inconceivable that less should be required of an officer acting without a warrant than is required of him under a valid warrant. Even if the search of 1108 had been made pursuant to a search warrant, the officers would have been required to state their identity and purpose before opening the door. 18 U.S.C. § 3109. See McDonald v. United States, supra; Accarino v. United States, 1949, 85 U.S.App.D.C. 394, 179 F.2d 456. Since the entry into 1108 was made without permission and was not preceded by an announcement, that entry was improper and the search which followed that improper entry cannot be upheld even if the search would otherwise have been valid. As was said by the Supreme Court in Miller, supra, and by this court in Accarino v. United States, it is 18 U.S.C. § 3109 which defines the duties of officers executing warrants.

A few cases have sought to distinguish between a locked and an unlocked door, in terms of the officer's duty to make an announcement before entering. E.g. United States v. Silverman, D.C.D.C.1958, 166 F.Supp. 838; United States v. Bowman, D.C.D.C.1956, 137 F. Supp. 385. This distinction seems to view entry through an unlocked door as "peaceful." See Ellison v. United States, supra; Palmer v. King, 1914, 41 App. D.C. 419, L.R.A.1916D, 278. We think that a person's right to privacy in his home (and the limitation of authority to a searching police officer) is governed by something more than the fortuitous circumstance of an unlocked door, and that the word "break," as used in 18 U.S.C. § 3109, means "enter without permission." We think that a "peaceful" entry which does not violate the provisions of § 3109 must be a permissive one, and not merely one which does not result in a breaking of parts of the house. We hold that the officers "entered" 1108 when they passed through the door in the partition, and we decide these cases on the narrow ground that an announcement, at least, was required at that time.

The motions to suppress should have been granted, and the judgments of the District Court are

Reversed and the cases remanded.

DANAHER, Circuit Judge (dissenting).

We are concerned here with the question of whether or not money, numbers slips, betting records, adding machines and other such equipment utilized in a gambling enterprise were lawfully seized when the appellants were arrested on July 10, 1959. The appellants have not challenged either the sufficiency or the form of the search warrant authorizing officers to search 1106-18th Street, N. W., or warrants commanding the arrest of the various appellants.¹ No question was presented as to the U. S. Commissioner's determination of the existence of "probable cause," indeed it would appear from the record that none could be.

Appellants had sought to suppress the use of the evidence in the hands of the Government,...