Rigby v. United States, 13840.
| Decision Date | 11 July 1957 |
| Docket Number | No. 13840.,13840. |
| Citation | 101 US App. DC 178,247 F.2d 584 |
| Parties | John J. RIGBY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. David Carliner, Washington, D. C., (appointed by this Court) for appellant.
Mr. Harry T. Alexander, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll, and Joel D. Blackwell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.
Appellant charges that the District Court erred in denying his motion to suppress the use against him of certain evidence, seized from his home. He had alleged that F.B.I. agents, without a search warrant and without valid consent, had entered his apartment on June 27, 1956, while seeking the effects of one Accardo.1 The latter had been arrested on a fugitive warrant while on the street, outside of the premises where Rigby's apartment was located. Next day, upon learning of the arrest of Accardo, Metropolitan Police went to the F.B.I. office and examined two suitcases, said by Mrs. Rigby to have been the property of Accardo. Recognizing the contents as property said to have been stolen, the police had ample opportunity to obtain a search warrant, but failed to do so.2 Instead, they went to and entered Rigby's apartment, and searched for and seized additional items said to have been stolen. Indictments followed, and Rigby and Accardo were convicted.
Although the federal agents were present in court at the time of the hearing on the motion, they were not called to testify as to the circumstances preceding and associated with their entry into Rigby's apartment. One agent took the stand but was excused without being questioned on the point. The Government, apparently having concluded that Accardo lacked standing to challenge the entry and search by the F.B.I. agents, offered no evidence whatever as to the appellant's waiver of his Fourth Amendment rights.
Quite apart from the burden normally devolving upon the accused to demonstrate alleged illegality in the procurement of evidence,3 we have pointed out that if the Government relies upon consent and alleges the absence of intimidation and duress, "it has the burden of convincing the court that they are in fact absent."4 Here, neither by testimony nor by affidavit, did the Government establish true consent, free of duress and coercion, in refutation of Rigby's claims. Absent such a showing, "we must hold that there was no consent and...
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...done so. (Ray v. United States, 5 Cir., 1936, 84 F.2d 654; Cofer v. United States, 5 Cir., 1930, 37 F.2d 677; Rigby v. United States, 1957, 101 U.S.App.D.C. 178, 247 F.2d 584; Waldron v. United States, 1955, 95 U.S.App.D.C. 66, 219 F.2d 37; Dukes v. United States, 4 Cir., 1921, 275 F. In re......
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...that evidence has been illegally procured normally devolves upon the accused in a motion to suppress such evidence. Rigby v. United States, 101 U.S.App.D.C. 178, 247 F.2d 584; Watson v. United States, 101 U.S.App.D.C. 350, 249 F.2d 106; see also Wilson v. United States, 10 Cir., 217 F.2d 75......
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...Channel v. United States, 9 Cir., 285 F.2d 217; Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690; Rigby v. United States, 101 U.S.App.D.C. 178, 247 F.2d 584; Pekar v. United States, 5 Cir., 315 F.2d 319). Submission to authority is not consent (Johnson v. United States, 333 U.......
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