Lankford v. Gelston

• Decision Date: 23 June 1966
• Docket Number: No. 10384.,10384.
• Parties: Samuel James LANKFORD and Corinthia Julia Lankford, his wife, Claude Tompkins and Rev. Elizabeth Tompkins, his wife, Walter Summers and Regina Summers, his wife, and Arthur Rayner, Appellants, v. George GELSTON, as Commissioner of Police of Baltimore City, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

364 F.2d 197 (1966)

Samuel James LANKFORD and Corinthia Julia Lankford, his wife, Claude Tompkins and Rev. Elizabeth Tompkins, his wife, Walter Summers and Regina Summers, his wife, and Arthur Rayner, Appellants, v. George GELSTON, as Commissioner of Police of Baltimore City, Appellee.^*

No. 10384.

United States Court of Appeals Fourth Circuit.

Argued June 2, 1966.

Decided June 23, 1966.

James M. Nabrit, III, New York City, and Anthony G. Amsterdam, Washington, D. C. (Jack Greenberg, Melvyn Zarr, Michael Meltsner, New York City, Juanita Jackson Mitchell, Tucker R. Dearing and W. A. C. Hughes, Jr., Baltimore, Md., on brief), for appellants.

Robert C. Murphy, Deputy Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges, sitting en banc.

SOBELOFF, Circuit Judge:

Negro families of Baltimore City, four in number but acting in behalf of others similarly situated, as well as in their own behalf, instituted an action in the United States District Court for the District of Maryland, seeking injunctive relief against the Police Commissioner of Baltimore City to prevent further invasions of their right to privacy guaranteed by the Fourth and Fourteenth Amendments to the Constitution. Jurisdiction is grounded on 28 U.S.C.A. § 1343, as authorized by 42 U.S.C.A. § 1983.¹

The District Court heard the testimony of forty-two witnesses and received a summary of the police records from a team of special masters chosen from the membership of the Junior Bar Association of Baltimore City. This case, which has attained considerable notoriety, stems from the efforts of the Baltimore Police Department to capture Samuel and Earl Veney, two brothers who shot and killed one policeman and seriously wounded another. During a nineteen-day period in December, 1964, and January, 1965, the police conducted searches of more than 300 houses, most of them private dwellings. The searches were based in almost every instance on unverified anonymous tips. In none did the police have a search warrant. Although the court found that the police, in conducting these searches at all hours of the day and night, upon telephone tips from unknown persons, had deprived plaintiffs and others of their constitutional rights, it refused to issue an injunction and denied plaintiffs relief. The court, however, retained jurisdiction of the case in order to process expeditiously any future claim of invasion of the plaintiffs' rights. 240 F.Supp. 550 (D.Md. 1965).

There is no dispute over the facts. On the evening of December 24, 1964, several persons committed an armed robbery of a liquor store in Baltimore City, in the course of which Police Lieutenant James Maskell was shot and seriously wounded. A suspect was soon apprehended near the scene of the crime and after questioning him, several police officers visited homes in the area in search of other suspects. At about 4:50 a. m., on December 25, Police Sergeant Jack Cooper, a uniformed officer in a cruising car and a member of the search party, was found fatally shot near his cruiser.

Early in the morning of December 25, warrants were issued for the arrest of Samuel Veney and his brother Earl, charging them with the robbery of the liquor store and with assaulting and shooting Lieutenant Maskell.² The Veney brothers were justifiably believed by the police to be armed and extremely dangerous. Later that day, the then Police Commissioner, Bernard Schmidt, authorized a special squad to be formed under the command of Captain Joseph Mahrer to search for the Veneys. About 50 or 60 police officers were members of the squad at one time or another.

Between December 25 and January 12, the Baltimore police made more than 300 "turn-ups" in an unsuccessful effort to locate and arrest the Veneys. In police parlance a turn-up is an investigation of a location and usually includes a search of the premises. Most of the searches here were of private residences. The Veneys are Negroes, and most of the dwellings searched were occupied by Negroes.³

The court found that:

"The police records with respect to many of the searches are sketchy and incomplete. Frequently all that is shown is that a particular address was turned-up on a particular day.

"The police did not apply for or obtain search warrants for the search of any of the more than 300 premises they entered." 240 F.Supp. at 553-554.

A police emergency vehicle carrying shotguns, submachine guns, tear gas apparatus, and bulletproof vests accompanied the men on every search. Before each turn-up a surveillance team of plainclothesmen would drive past the building to locate exits, alleyways, etc., but there were no inquiries in the neighborhoods about the houses to be searched nor was there any other investigation of the tips, except to observe the character of the neighborhood.

Four officers carrying shotguns or submachine guns and wearing bullet-proof vests would go to the front door and knock. They would be accompanied or followed by supervising officers, a sergeant or lieutenant. Other men would surround the house, training their weapons on windows and doors. "As soon as an occupant opened the door, the first man would enter the house to look for any immediate danger, and the supervising officer would then talk to the person who had answered the door. Few stated any objection to the entry; some were quite willing to have the premises searched for the Veneys, while others acquiesced because of the show of force." 240 F.Supp. at 554.

"The officers involved worked exceptionally long hours. Some were polite and considerate of the occupants. Others were abrupt, and without adequate explanation of their purpose, flashed lights on beds where children were sleeping and otherwise upset the occupants of the home being searched." 240 F.Supp. at 554.

Few specific instances need be detailed to illustrate the consequences of police reliance on anonymous tips and the terrifying experiences to which occupants of the searched homes were subjected.

Samuel Lankford and his wife, who have six children, have resided at 2707 Parkwood Avenue since 1949. Mr. Lankford has worked at the U.S. Post Office in Baltimore for over ten years. At about 1:15 a. m. on January 2, 1965, Lieutenant Robert Hewes was told by a communications center officer that he had received a call that the Veney brothers were at this address with a family named Garrett. A few minutes before 2:00 a. m. Lieutenant Hewes and his search party converged upon Parkwood Avenue. Upon their arrival in the neighborhood they met on the street a Negro man, described by the lieutenant as "respectable looking," who identified himself as the person that had called the communications center. He told Lieutenant Hewes that he had been told by a newspaper boy that two men resembling the Veneys had entered a house on Parkwood Avenue. At 2:00 a. m. a search party led by the lieutenant knocked on the door, and Mrs. Lankford, awakened by the knock, opened the door. The officers entered the house and began their search while the lieutenant talked with the woman. She told him that her name was not Garrett. At the trial she denied that the officers asked for or were given permission to search, and Lieutenant Hewes acknowledged that his men had already gone to the second floor while he was talking with her. The husband was awakened in his second floor bedroom by two flashlights shining in his face and found four men with shotguns in his room. They questioned him, while other officers searched the remaining rooms including the children's bedrooms, and left.

Mr. and Mrs. Wallace have made their home at 2408 Huron Street for 21 years. They live with a three-year old son, three daughters, Lucinda (a Baltimore public school teacher), Harrietta (a college student), and Sharon (a high school student), and two other relatives. At 8:30 p. m. on December 30, 1964, Lieutenant Coll of the Southwest District was told by a clerk at another police station that she had received an anonymous call from a man who said that the Veneys were being sheltered at this address. Lieutenant Coll testified that since this was the first time that the Veneys had been placed in this neighborhood, he felt that an investigation was in order. A little after 9:00 p. m. Lieutenant Coll led about 14 officers to the house. When the police arrived, Lucinda Wallace was showing slides to a group of her family and guests. Mr. and Mrs. Wallace were both out, Mrs. Wallace at a beauty shop she operated four doors away. Six officers armed with shotguns and rifles entered and searched the home; others who were stationed outside would not allow Mrs. Wallace to enter and refused to explain what was happening. Reduced to tears, she was finally admitted to her home, where she was joined by her children, all crying hysterically. As the policemen were departing, they told Lucinda and her mother that they had received an anonymous call that the Veneys were in the house.

At the trial several police officers, each with long experience on the Baltimore police force, testified that in serious cases it was routine practice to make searches of homes on the basis of anonymous calls. They recognized the difficulty in authenticating such tips, and testified that they attempted to do so by evaluating the tone of voice used by the caller. The officers further stated that not infrequently they would also conduct searches based on tips received from the outside and transmitted to them by police telephone clerks.

On January 8, 1966, plaintiffs' attorneys brought the complaint to the chambers of the District Judge and asked for a temporary restraining order. At a hearing held that afternoon, the Deputy Attorney General represented to the court that the Police Commissioner would promptly issue a general order dealing with the problems raised in the complaint. Based on that...