Price v. United States

• Decision Date: 10 June 1965
• Docket Number: No. 18901.,18901.
• Citation: 348 F.2d 68,121 US App. DC 62
• Parties: John W. PRICE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

121 US App. DC 62, 348 F.2d 68 (1965)

John W. PRICE, Appellant, v. UNITED STATES of America, Appellee.

No. 18901.

United States Court of Appeals District of Columbia Circuit.

Argued April 8, 1965.

Decided June 10, 1965.

Certiorari Denied October 18, 1965.

Mr. Dennis G. Lyons (appointed by this court), Washington D. C., with whom Mr. Gerald M. Stern, Washington, D. C., was on the brief, for appellee.

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

Before FAHY, DANAHER and McGOWAN, Circuit Judges.

Certiorari Denied October 18, 1965. See 86 S.Ct. 170.

FAHY, Circuit Judge.

Appellant was convicted of housebreaking, 22 D.C.Code § 1801, and grand larceny, 22 D.C.Code § 2201, and was given concurrent sentences of three to nine years imprisonment.

On May 14, 1964 a dry cleaning store was broken into at approximately 9:30 p. m. A safe and its contents were found missing. Police officers came upon the scene at about 11 p. m. and were told by the owner that among the contents of the safe were two rolls of quarters bound with a rubber band, and an envelope with the owner's writing on it containing some $500 in bills. An eyewitness testified he saw three men, whom he described in a general way, commit the crime, and that they placed the safe in a black 1955 or 1956 Ford with orange license plates and drove off in the car.

Such a car was spotted about two hours later by officers who saw in the car a crowbar and other tools as well as two rolls of quarters and a bag or envelope later found to contain brass fittings and identified as also having been in the stolen safe.¹ After a few minutes defendant approached the car and got inside, whereupon the officers came up, checked his identification, questioned him about the tools and arrested him. During the questioning one of the officers, Detective Baker, saw an imprint on the rear seat which indicated to him that a large object had rested there corresponding in size to the stolen safe.

Defendant was taken in a squad car to a Precinct Station and a police officer drove defendant's car to the parking lot at the station. The tools, rolls of quarters and the bag or envelope with the brass fittings were then taken into the station. About 20 or 25 minutes later Detective Baker went out to the parking lot again and saw the lights of defendant's car blinking on and off. Upon investigation he found a man, apparently a friend of the defendant,² reaching under the front seat of the car. The man was arrested and taken inside. Detective Baker then returned to the car and found under its front seat an empty envelope with the store owner's writing on it.

A hearing was held on defendant's motion to suppress the evidence taken from the car. The court denied the motion except as to some articles obtained from the trunk of the car two days after the arrest and not now involved. The tools, quarters, brass fittings and envelope were admitted in evidence at trial. It is contended this evidence was obtained by an unlawful search and seizure and, therefore, that its admission was reversible error.

Defendant conceded that probable cause existed for his arrest. This simplifies the problem. The tools, rolls of quarters and brass fittings were admissible in evidence if seized as incidental to the lawful arrest. Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed. 2d 777. As that case holds, however, to come within this exception to the necessity for a warrant the seizure must be contemporaneous with the arrest and not remote from it either in time or place. In Preston the search of the automobile without a warrant was held not incidental to Preston's arrest for vagrancy, for the arrest had occurred when he was in the automobile and the search of the automobile was...