Smith v. Whiteshead

Decision Date10 September 1981
Docket NumberNo. 79-526.,79-526.
PartiesMichael K. SMITH and Stephen E. Granville, Appellants, v. Noble A. WHITEHEAD and Jo Ann Haltiwanger, Appellees.
CourtD.C. Court of Appeals

Edward E. Schwab, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., at the time the briefs were filed, were on the briefs, for appellants.

Chris Marder, Rockville, Md., with whom John G. Gill, Rockville, Md., was on the brief, for appellees.

Before NEWMAN, Chief Judge, and KELLY and HARRIS, Associate Judges.

NEWMAN, Chief Judge:

Appellants are police officers who, while engaged with other officers in a valid search of appellees' apartment for evidence of narcotics possession and dispensation also participated in the seizure of several items of consumer goods from the apartment. The property was turned over to the District Property Clerk, who refused to return it to appellees. This action for conversion against the appellant officers followed. A jury found appellants liable to appellees for compensatory and punitive damages of $2,700.

Appellants contend that the seizure of the goods was lawful, and thus that an action for conversion should not have been allowed. Even if the seizure was not lawful, appellants argue that they should not have been held personally liable for the conversion because: (1) they were following the orders of a superior when they participated in the seizures; (2) they had a reasonable good faith belief in the legality of their actions; (3) they did not personally benefit from the seizures; and (4) given the availability of alternative remedies for the return of the property, an action for conversion was inappropriate. Finally, appellants dispute the award of punitive damages.

In Part I we outline the facts of the case. In Part II we find that the seizure was neither within the scope of the warrant nor justified under the plain view exception to the warrant requirement. In Parts III and IV we conclude that there was no legal bar to a finding either that appellants had converted appellees' property or that they were liable for punitive as well as compensatory damages. Appellants' liability depended on questions of fact, which were properly submitted to the jury. The jury's verdict is supported by adequate evidence. We affirm.

I

During the week of March 18, 1973, appellant Officers Stephen E. Granville and Michael K. Smith of the District of Columbia Metropolitan Police Department received information from a reliable informant that appellee Noble Whitehead was selling narcotics from his residence at 5055A Benning Road, Southeast. To ascertain the validity of this information, appellants, through their informant, made at least two controlled heroin purchases from Whitehead before obtaining a warrant for a search of the entire Benning Road premises. Appellants later asserted that they had also learned from their informant that Whitehead accepted payment for narcotics in movable property as well as money, but that they had refrained from including this information in the affidavit in order to conceal the identity of, and thus protect, their informant. The search warrant and affidavit in support thereof made no mention of such a trade in movables, but stated only that drug-related property was sought including: "heroin, capsules, envelopes, syringes, tourniquets, cookers and paraphernalia used in the preparation of heroin for distribution or use and any other instrumentalities or evidence of illegal possession or dispensation of heroin or of any other narcotic drugs illegally held."

At approximately six o'clock on the morning of March 30, 1973, appellants, under the supervision of Sergeant Clinton Stone and in the company of several other police officers, executed the warrant. They knocked, announced their presence, authority, and purpose, and, receiving no reply, forced open the back door of the apartment with a battering ram. Whitehead was at the time in the bathroom, and appellee Jo Ann Haitiwanger, with whom Whitehead resided, was asleep in the bedroom.

Officer Smith found a packet of heroin on the floor by the toilet, and a loaded revolver, later identified as a stolen firearm, was found in the bathtub. Narcotics and narcotics paraphernalia, as well as cutting materials used to dilute the strength of heroin, were also found scattered in the dining room, the living room, and in the linen closet. Whitehead admitted ownership of the narcotics, and, in response to a question, answered that the police officers had seized all the narcotics in the apartment.

According to appellees' testimony, the officers then proceeded to search the apartment in a reckless and destructive manner. One officer searched each of Whitehead's and Haltiwanger's school books individually, and, as he completed his search, threw the books on the floor. In the kitchen the officers, as they searched, dumped trash, as well as flour, coffee, cereal, sugar, and other foodstuffs, on the stove and floor. In the bedroom, as the officers inspected clothes in the closet and dressers, they dropped the clothes to the floor and walked on them. They emptied bottles of perfume and, after searching under the rug, left it upside down. In the living room the police, having first probed the couch and having found no evidence of drugs, ripped apart its frame and upholstery. Record jackets were opened; the records were left scattered on the floor, where officers walked on and broke some of them. Haltiwanger testified that when she protested the manner of the search, Officer Smith pushed and struck her.

The officers also found in the apartment items of personal property, which Sergeant Stone testified, he suspected appellees had received in exchange for narcotics. These included two televisions (one color, one black and white), a component stereo set, two cameras, a tripod, a movie camera, two projectors, a cassette tape recorder, a tape deck and a tape case, and a sewing machine. The bases for Sergeant Stone's suspicion, he stated, were first, information he had received from an informant that Whitehead traded narcotics for property, and second, Whitehead's inability to substantiate with sales receipts or cancelled checks his ownership of the property. Appellants also assert as a further basis for their suspicion that "many of the items were not usually found in homes in that area of the city and were duplicative of other property in that apartment. . . ."

Whitehead testified that he explained to the police officers why he and Haltiwanger possessed two television sets and two stereo sets. While Whitehead and Haltiwanger were detained in the Benning Road premises Sergeant Stone telephoned the Police Department and gave descriptions and serial numbers for each of the items of personal property in question. None of the items was listed on the police "hot sheet" of stolen goods. Sergeant Stone nevertheless ordered that fourteen items be seized. Computer checks done at the station house later the same day showed the same negative result as the "hot sheet." The property was nonetheless turned over to the Police Department Property Clerk, who still holds it. Whitehead was convicted of possession of narcotics with intent to distribute and of receiving stolen property (the revolver). following his conviction, the United States

Attorney's Office notified the Property Clerk that it would not need the seized items as evidence in future prosecutions. When, however, Whitehead attempted to recover the property upon his release from prison, the Property Clerk declined to return it in the absence of "satisfactory evidence" of legal ownership. See D.C. Code 1973, § 4-156(a).1

Whitehead and Haltiwanger thereafter brought the instant suit against Officers Smith and Granville for conversion of the items in question. At trial, Whitehead and

Haltiwanger testified as to how they had acquired the property, and as to its condition at the time of the seizure. Whitehead presented a receipt for one movie projector. A friend of Whitehead's testified that he had given appellee a camera and a tripod, and Haltiwanger's mother testified that she gave the sewing machine to Haltiwanger. An appraiser assessed the value of the items seized at $600 as of March 30, 1973, the date of the seizure.

The jury returned a verdict holding appellants jointly and severally liable for $500 compensatory damages and $1300 punitive damages for Whitehead, and $100 compensatory damages and $800 punitive damages for Haltiwanger. The trial court denied appellants' motion for judgment notwithstanding the verdict or in the alternative for a new trial. This appeal followed.

II

The elements of conversion are: (1) an unlawful exercise, (2) of ownership, dominion, and control, (3) over the personalty of another, (4) in denial or repudiation of his right to such property. Blanken v. Harris, Upham & Co., D.C.App., 359 A.2d 281, 283 (1976). Appellants contend that the seizure of appellees' personal property was lawful, and that, as an essential element of the tort of conversion was lacking, appellees' claim that the items were converted was unfounded. We address first the legality of the seizure.

Appellants made the seizure in the execution of a valid search warrant of the entire premises on Benning Road. They had, however, intentionally omitted mention of transactions in personal property for narcotics and of any items of personalty subject to seizure in the affidavit they submitted in support of the warrant. The purpose of this omission was, according to both Officers Smith and Granville, to conceal the identity of and so protect their informant. Appellants rely on language of the warrant authorizing the seizure of "any other instrumentalities or evidence of...

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2 cases
  • Cooney v. Park County
    • United States
    • United States State Supreme Court of Wyoming
    • April 18, 1990
    ...of the judiciary by which our rights are defined and our oath of office is taken. A similar analysis was developed in Smith v. Whitehead, 436 A.2d 339 (D.C.App.1981) (reh'g granted and opinion vacated 1/5/82) in adaptation of Bivens for a District of Columbia remedy. The case is interesting......
  • Mason v. Rostad, 82-53.
    • United States
    • Court of Appeals of Columbia District
    • April 24, 1984
    ...oppressiveness, willful disregard of the plaintiff's rights, or other circumstances tending to aggravate the injury." Smith v. Whitehead, 436 A.2d 339, 352 (D.C.1982) (citing cases). We agree with the trial judge that there was insufficient evidence in the record to justify submitting the i......

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