Reid v. United States, 3467.

• Decision Date: 26 June 1964
• Docket Number: No. 3468.,No. 3467.,3467.,3468.
• Citation: 201 A.2d 867
• Parties: Percy C. REID, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 867

201 A.2d 867

Percy C. REID, Appellant, v. UNITED STATES, Appellee.

No. 3467.

No. 3468.

District of Columbia Court of Appeals.

Argued May 4, 1964.

Decided June 26, 1964.

Bernard M. Dworski, for appellant.

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

Before HOOD, Chief Judge, QUINN, Associate Judge, and CAYTON (Chief Judge, Retired).

CAYTON, Judge.

Appellant was convicted of violating District of Columbia Code 1961, § 33-402, unlawful possession of narcotics, and Code 1961, § 33-416a, narcotic vagrancy. He appeals on the ground that his motion to suppress should have been granted.

At the hearing on the motion to suppress, the government's evidence was that appellant, accompanied by a woman, rented a room in a tourist home operated by one Webster O'Connor. About an hour and half later O'Connor smelled a burning odor and upon investigation discovered it emanating from appellant's room. He knocked but received no reply, although he heard conversation within. He then heard a dresser being dragged across the room to the front or entrance door. There was a large storeroom next to appellant's room. O'Connor went into that room and through a crack in the door (which had been blocked by the dresser) saw appellant with a black stocking around his arm. He also saw a needle and syringe on top of a television set, along with some bottle top cookers. After a time he saw appellant injecting himself. O'Connor assumed the burning odor was dope and called the police. Several hours later two policemen responded to the call. O'Connor met them at the front door and invited them in, told what he had seen, and took them to the storeroom from where they looked into appellant's room.

One officer testified he saw appellant, with a black stocking or handkerchief wrapped around his arm, in the process of injecting himself. He also saw some bottle top cookers on top of the television set, along with several capsules. Within two or three seconds, the officer was at appellant's door, knocked, said, "Police," and immediately went inside by turning the knob of the unlocked door, this consuming another second or two. He did not announce his purpose prior to entry, nor did he hear any strange noise prior thereto. Appellant dropped the needle and syringe to the floor and tried to kick them under the bed. He was then placed under arrest.

Police seized 67 unused capsules containing a white powder from appellant's right pants' pocket; 14 empty capsules with traces of a white powder, some from on top of the television set; and the needle and syringe approximately half full of a mixture of blood and other fluid from under the bed. Laboratory tests indicated that the powder in the 67 capsules, the traces of white powder in the 14 capsules, and the mixture in the syringe were heroin hydrochloride.

The officer further testified that from experience he knew these items to be narcotics paraphernalia and that he had this in mind before he went into the room to arrest appellant for a narcotics violation and to seize the evidence. He also testified that before he entered he had not seen any fireplace or bathroom in the room, nor did he smell anything burning. He said that before entering the room he did not know in fact that it was not equipped with a bathroom or fireplace.¹

Appellant testified he had rented a room from O'Connor and was told there were no cracks in the walls through which someone could look. He admitted having injected himself earlier in the morning with heroin and again as the officer was entering the room, and that he dropped the needle simultaneously with the entry. He denied having heard the officer say "Police" or hearing the knock before the entry

Two questions are to be answered:

(1) Did the view by the police into the room occupied by appellant violate the Fourth Amendment?²

(2) Was the arrest of appellant lawful under the criteria of 18 U.S.C.A. § 3109, since the officer failed to announce his purpose before entering?

The threshold question is whether the view by the officer through the crack in the door was an unreasonable search under the Fourth Amendment. Appellant contends that but for this view there would have been no probable cause to arrest him. He relies almost completely on McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). In that case, police had McDonald under observation for two months on suspicion of lottery offenses. On the day of the arrest, a group of officers went to the house without an arrest or search warrant. While outside the house, one officer thought he heard an adding machine, a machine frequently used in numbers operations. Believing a numbers game was going on in the, house, an officer opened a window leading into the landlady's room and climbed through. He identified himself to her and admitted the other officers to the house. After searching the rooms on the ground floor, they proceeded to the second floor. The door to an end bedroom was closed, but one of the officers stood on a chair and looked through the transom. He observed both petitioners in the room, as well as numbers slips, money piled on the table, and adding machines. He yelled to McDonald to open the door and McDonald did so. Both petitioners were arrested and the officers seized the machines, a suitcase of papers, and money. The question was whether this was an unreasonable search and seizure prohibited by the Fourth Amendment.

The government there argued that, although it was an invasion of privacy for the officer to enter the landlady's room, it was a trespass which violated her rights under the Fourth Amendment, not McDonald's; that, so far as he was concerned, the officers were lawfully within the hallway, as much so as if the landlady had admitted them; that looking over the transom was not a search, for the eye cannot commit the trespass condemned by the Fourth Amendment; that since the officers observed McDonald in the act of committing an offense, they were under a duty to arrest him and the arrest being valid, the search incident thereto was lawful.

The Supreme Court said: "We do not stop to examine the syllogism for flaws. Assuming its correctness, we reject the result," and held that when under the circumstances the police should procure a search warrant, the failure to do so, except in the face of compelling reasons, will invalidate a search made without a warrant. Thus the holding did not void any specific part of the police action, but rather the result.

In the case before us there is no doubt or dispute as to what happened. Appellant himself corroborated the government testimony that the police saw narcotics paraphernalia in the room and saw him in the act of injecting himself — an act at once harmful to the individual and illegal. The police being in the position of seeing a crime committed in their presence were under a statutory duty to arrest the offender immediately and without a warrant, Code 1961, § 4-140, since previous circumstances did not indicate, as in McDonald, a duty to procure a warrant.

As to the narrow question of whether the view itself was an unreasonable search and seizure,³ it does not appear that McDonald is precedent for that point since the Supreme Court did not hold that the view by the officers amounted to a search. Moreover, a comparison of the cases before the Supreme Court on this issue leads to the conclusion that where there is not some actual physical interference to an individual's constitutionally-protected area, there is no violation of the Fourth Amendment.⁴

The next question is whether appellant's arrest was lawful, since a seizure following an arrest is valid only if the arrest is valid.

18 U.S.C.A. § 3109 provides:

"The officer may break open any outer or inner door or window of a house, * * * or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant."

It is agreed that this section is a codification of the common law of arrest and is in force in the District of Columbia. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456 (1949).

The basic question is whether the facts in this case fall under the exception mentioned by the Supreme Court in Miller v. United States, supra. There the Court held that the facts did not show compliance with § 3109 and invalidated the arrest and subsequent search.⁵ The Court noted that there were some state decisions holding that justification for noncompliance exists in exigent circumstances, for example, when officers in good faith believe that they or someone within is in peril of bodily harm, or that the person to be arrested is fleeing or attempting to destroy evidence. The Court then stated:

"But whether the unqualified requirements of the rule admit of an exception justifying noncompliance in exigent circumstances is not a question we are called upon to decide in this case.

"* * * * * *

"The rule seems to require notice in the form of an express announcement by the officers of their purpose for demanding admission. The burden of making an express announcement is certainly slight. A few more words by the officers would have satisfied the requirement in this case. It may be that, without an express announcement of purpose, the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture * *...