Moody v. United States

• Decision Date: 05 August 1960
• Docket Number: No. 2572.,No. 2574.,No. 2576.,No. 2575.,No. 2573.,2572.,2573.,2574.,2575.,2576.
• Citation: 163 A.2d 337
• Parties: Martin A. MOODY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

163 A.2d 337

Martin A. MOODY, Appellant, v. UNITED STATES, Appellee.

No. 2572.

No. 2573.

No. 2574.

No. 2575.

No. 2576.

Municipal Court of Appeals for the District of Columbia.

Argued June 13, 1060.

Decided August 5, 1960.

Rehearing Denied September 9, 1060.

William J. Garber, Washington, D. C., for appellant.

Maurice R. Dunie, Asst. U. S. Atty., Washington, D. C., with whom Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

QUINN, Associate Judge.

Appellant was convicted by the court, trial by jury having been waived, on two counts of unlawful entry,¹ two of petit larceny,² and one of possessing numbers slips.³ On appeal, he contends that the trial court committed error in denying his motion to suppress certain evidence on the ground that it had been secured by search and seizure in contravention of the Fourth Amendment. He also complains that as a matter of law there was insufficient evidence to convict him of the charge of possessing numbers slips. These are the facts:

On October 24, 1959, at 1:30 a.m., an officer of the Metropolitan Police, in response to a radio call reporting a fight, proceeded to the 1600 block of U Street, N.W., where he encountered the complaining witness, Willie Johnson, Jr., who was standing on the sidewalk, holding appellant. Johnson told the officer that appellant had broken into his apartment on two occasions and had stolen various items of personalty, consisting of wearing apparel, a tape recorder, and a camera. He further stated that thirty minutes earlier he had seen some of the missing articles in appellant's apartment, located on the second floor of the same building wherein Johnson resided; that upon making a demand for the return of the property, appellant fled to the street. Johnson, in pursuit, finally apprehended appellant at the spot where they were met by the officer.

During trial, Johnson explained in greater detail the events occurring before the officer's arrival. At 1 a.m., accompanied by one Phelps and one Roberts, he observed appellant, wearing one of the stolen garments, playing cards in the kitchen on the first floor of the apartment building. After questioning appellant, the four men went up to appellant's apartment. While Johnson discussed the matter with appellant, Phelps and Roberts remained in the hallway where they witnessed appellant's hasty departure. This testimony was substantiated by Phelps.

The officer testified that as a result of the accusations, he placed appellant under arrest, and at Johnson's suggestion they returned to the apartment building so that he might verify that a crime had been committed. During the ensuing investigation appellant was left in the custody of another officer in the patrol car. According to the testimony of Johnson and the officer, they found the door to appellant's apartment standing open and the missing items scattered about the floor, plainly visible from the hallway. Johnson entered the apartment, gathered up the articles claimed to be his, and then handed them to the officer, who had remained in the hallway. There was no indication in the record that the officer did anything to induce Johnson's actions or that he made any effort to deter him. Phelps, who had waited in the hallway with the officer when Johnson retrieved the articles in question, corroborated this testimony.

The officer also testified that a notebook was taken from appellant's person during the search conducted at the police precinct. A member of the Gambling Squad of the Metropolitan Police testified that, in his opinion, two pages of the notebook were numbers slips used or to be used in the operation of a lottery.

While testifying, appellant asserted that he was the owner of the property and stated that the notebook was merely a record of numbers he had played. He denied writing numbers and maintained that the notebook had not been taken from his person but was removed from one of the articles appropriated from his apartment.

In Burdeau v. McDowell, the Supreme Court ruled that the mandate of the Fourth Amendment prohibiting unreasonable searches and seizures is intended as a restraint upon persons acting under color of governmental authority and does not apply to the independent undertakings of private citizens.⁴ Accordingly, certain papers, stolen from the defendant by private detectives and later turned over to federal authorities, were properly used in a criminal prosecution against him. As no official of the government had any connection with the theft, or any knowledge thereof, until many months later, there was no infringement of the constitutional guarantee. Since that decision the Supreme Court has not been called upon to further examine a search and seizure conducted by a private person and to consider its effect on the admissibility of the evidence thereby obtained.

A second class of cases was also accorded immunity from the operation of the exclusionary doctrine derived from the Fourth Amendment. These involved situations drawing into issue the admissibility of evidence procured by the unlawful search and seizure of state officials. Until recently it was widely held that such evidence could be introduced into a federal criminal proceeding⁵ unless federal agents participated in the acquisition thereof⁶ or unless the local police secured the evidence solely on behalf of the federal government⁷ Under the decision of Elkins v. United States, the silver platter doctrine may no longer be invoked to legitimize evidence seized by state police without the knowledge or cooperation of federal agents.⁸ If the search and seizure would have been unlawful had it been committed by federal authorities, the evidence remains tainted and must be excluded in a federal court.

Since the avowed purpose of the Fourth Amendment is to safeguard one's privacy from the arbitrary intrusion of the police, whether state or federal, it appears that Elkins would leave intact the decision of the Burdeau case. We must, therefore, rely on the reasoning of Burdeau and the concept of participation as discussed in the silver platter cases to determine whether there was such involvement on the part of the arresting officer in the present case that responsibility for the search and seizure must be attributed to the police authorities.

In Lustig v. United States, the Supreme Court analyzed the meaning of participation, and we believe its language...