Malcolm v. United States, 7205.
| Docket Nº | No. 7205. |
| Citation | 332 A.2d 917 |
| Case Date | February 07, 1973 |
| Court | Court of Appeals of Columbia District |
Page 917
v.
UNITED STATES, Appellee.
Edwin S. Rockefeller, Washington, D. C., appointed by the court, for appellant.
Harry R. Benner, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Albert H. Turkus, and William R. King, Asst. U. S. Attys., were on the brief, for appellee.
Before REILLY, Chief Judge, and KELLY and El CKL I NG, Associate Judges.
REILLY, Chief Judge:
This is a sequel to our recent decision in United States v. Malcolm, D.C.App., 331 A.2d 329 (1975). Appellant Malcolm is the same gentleman whose reported selling of marijuana to miscellaneous customers in the 2500 block of 14th Street, N.W., resulted in his arrest and the charge by in
Page 918
formation of a violation of D.C.Code 1973, § 33-492.
Some five weeks later, the very informant whose report caused a police officer to make the original arrest, told the same officer that he had just seen Malcolm offering similar illegal substances for sale. Behaving with seeming classic deference to the Aeschylean ideal of unity of time, place, and action, the three protagonists — the informant, the policeman and the appellant — then proceeded with a virtual reenactment of the street scene of the previous month.1
Upon receipt of this news, the officer again asked the informant to go back to the place — the same block where Malcolm had been arrested before — and check. When the informant returned to say that the asserted vendor was still there, the policeman with two fellow officers drove to the 2500 block and found the suspect on the sidewalk, where he was placed under arrest. The policeman again searched him and again discovered envelopes containing quantities of marijuana. Another information was signed, charging Malcolm with the same offense.
Counsel, who had represented him in the first case, again filed a pretrial motion to suppress. Another judge was designated, however, to preside at the suppression hearing. Although the same officer testified about the circumstances of the arrest, and defense counsel raised the same issues, this time the motion to suppress was denied. At a subsequent trial, a guilty verdict was returned. The court imposed a 10-day sentence, then suspended it, placing appellant on probation for six months.
Appellant's assignments of error are directed entirely at the proceedings on the motion to suppress. At the outset of the hearing, the court ruled that the proponent of the motion (Malcolm) had the burden of going forward. It is well settled that on a motion to suppress evidence obtained by search warrant, the moving party has the initial burden of establishing that his rights were violated. Chin Kay v....
To continue reading
Request your trial
-
Guerra v. State, No. 94-96
...of probable cause has already been made by a magistrate, thereby giving rise to a presumption of legality." Malcolm v. United States, 332 A.2d 917, 918 (D.C.App.1975). The value of having first obtained a warrant may lie in a shifting of the onus probandi with respect to the issue of reason......
-
Ruffin v. U.S., No. 83-640.
...the burden of production or the burden of persuasion to the government, depending on the circumstances. See Malcolm v. United States, 332 A.2d 917, 918 (D.C. 1975) (absent a warrant, burden of establishing probable cause is on government; given a warrant, burden of proving lack of probable ......
-
BROWN v. U.S., No. 86-1276
...moreover, the evidence comprising probable cause is peculiarly within the knowledge and control of the police. Malcolm v. United States, 332 A.2d 917, 918 (D.C. The Constitution, however, proscribes unreasonable searches and seizures. The italicized adjective imports a command of proportion......
-
State v. Vrtiska, No. 86-752
...Hattery, 109 Ill.2d 449, 94 Ill.Dec. 514, 488 N.E.2d 513 (1985); State v. Hamilton, 335 N.W.2d 154 (Iowa 1983); Malcolm v. United States, 332 A.2d 917 Thus, the burden of proof depends on the basis for the search, that is, whether the search was conducted pursuant to a warrant or without a ......
-
Guerra v. State, 94-96
...of probable cause has already been made by a magistrate, thereby giving rise to a presumption of legality." Malcolm v. United States, 332 A.2d 917, 918 (D.C.App.1975). The value of having first obtained a warrant may lie in a shifting of the onus probandi with respect to the issue of reason......
-
Ruffin v. U.S., 83-640.
...the burden of production or the burden of persuasion to the government, depending on the circumstances. See Malcolm v. United States, 332 A.2d 917, 918 (D.C. 1975) (absent a warrant, burden of establishing probable cause is on government; given a warrant, burden of proving lack of probable ......
-
BROWN v. U.S., 86-1276
...moreover, the evidence comprising probable cause is peculiarly within the knowledge and control of the police. Malcolm v. United States, 332 A.2d 917, 918 (D.C. The Constitution, however, proscribes unreasonable searches and seizures. The italicized adjective imports a command of proportion......
-
Houghton v. State, 96-99
...of the evidence that her rights were violated. Guerra v. State, 897 P.2d 447, 452 (Wyo.1995) (quoting Malcolm v. United States, 332 A.2d 917, 918 (D.C.App.1975)). The constitutional touchstone of a search and/or seizure is whether the search unreasonably Page 366 violated a justifiable expe......