Trilling v. United States, 13069

• Decision Date: 17 April 1958
• Docket Number: 13165,No. 13069,13212.,13069
• Citation: 104 US App. DC 159,260 F.2d 677
• Parties: John E. TRILLING, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

104 US App. DC 159, 260 F.2d 677 (1958)

John E. TRILLING, Appellant, v. UNITED STATES of America, Appellee.

Nos. 13069, 13165, 13212.

United States Court of Appeals District of Columbia Circuit.

Argued December 11, 1957.

Decided April 17, 1958.

Dissenting Opinion as amended December 11, 1958.

Mr. John Idomir, Washington, D. C., for appellant.

Mr. E. Tillman Stirling, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., and Forbes W. Blair, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee. Messrs. Harold D. Rhynedance, Jr., and Joel D. Blackwell, Asst. U. S. Attys., entered appearances for appellee. Mr. Richard J. Snider, Asst. U. S. Atty., also entered an appearance in No. 13165 for appellee. Mr. Milton Eisenberg, Asst. U. S. Atty., also entered an appearance in No. 13212 for appellee.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting in banc.

PER CURIAM.

These appeals were heard together. In regard to Count 3 in No. 13069, a majority of the court are of opinion there was no error. In regard to the other counts of No. 13069, and in each of the other cases, a majority of the court are of opinion there was prejudicial error in admitting in evidence certain statements the police obtained from appellant. The conviction on Count 3 is affirmed. The other convictions are reversed.^*

DANAHER, Circuit Judge.

We consolidated the appeals in these cases because the common question involved the receipt in evidence of Trilling's confessions or admissions made to police before Trilling was arraigned. Were the circumstances such that all must be excluded? A codefendant, Watts, had pleaded guilty to all counts, but Trilling had moved to exclude all confessions and admissions on the ground there had been unnecessary delay in arraignment. In the separately tried cases, hearings out of the presence of the jury were conducted by three different District Judges, each of whom concluded that the confessions should be received, subject to determination by the jury as to their voluntary character. While the appeals were pending, the Supreme Court decided Mallory v. United States.¹ As there applied, Fed.R.Crim. P. 5(a), 18 U.S.C.A. seems to permit differing results in varying situations. It is not simply a matter of hours, one way or another, but of police purpose and conduct in the light of circumstances.

Thus, confessions of guilt as to the first two counts of case No. 13069 and as to each of the two counts in Nos. 13165 and 13212 are in a different category from an admission of guilt as to the third count of No. 13069, wherein Trilling and Watts had been charged with breaking and entering a warehouse owned by Johnson & Wimsatt, Inc. Upon ample "probable cause," Trilling had been arrested solely on this charge. A police officer, a long-time friend of the family, who had had nothing to do with Trilling's arrest, after learning that Trilling had been locked up pending arraignment, confronted Trilling with the evidence against him, and he readily admitted his guilt. We believe that, under the circumstances to be set forth, the Mallory decision does not call for the exclusion of Trilling's admission. Out of sequence, turning first to this Johnson warehouse count, a majority of the court are in agreement that the conviction should be affirmed. We take up the Johnson warehouse count in Part I.

I

Working the midnight shift, from 12:00 until 8:00 A.M., September 1, 1955, Detective Trammelle and Detective Davis were patrolling in the warehouse district where there had been a series of burglaries. About 2:15 A.M., they drove up to a warehouse owned by Johnson & Wimsatt, Inc., located on Twenty-fourth Place, N. E., a dead end street. There were four or five other warehouses on that street. There, within a few feet of the Johnson warehouse, they came upon a Dodge car, headed toward the street's dead end. As the police approached, Trilling got out from behind the wheel. The police asked if it was his car and he said no, he was driving it for Watts. He produced a driver's permit and also the registration card for the car. While Trammelle talked with Trilling, the officer noted in his book the names, permit numbers, and addresses of Trilling and Watts. Davis in the unlighted warehouse district went about with a flashlight examining the buildings but discovered no damage. Trilling and Watts were not then further detained.

The Company's yard manager, one Williams, arrived at the Johnson warehouse about 6:45 on the morning of September 1. He discovered that a window in one of the rear rooms had been broken, that the office had been ransacked, that invoices and papers had been scattered about, and that someone had attempted to open an inventory file resembling a safe. He notified police immediately.

Pursuant thereto, during the course of the day, September 1, a technician, Officer Miller, from the Identification Bureau, visited the Johnson warehouse to examine the premises for possible latent fingerprints. He discovered that a pane of glass had been broken out of a window, and he dusted with a fine camel's hair brush on the glass to pick up whatever moisture or oil or perspiration might have been left on the glass by the prowler's fingers. He explained that the powder adheres to and forms an impression where a fingerprint has been left. He found prints on the inside of the pane of glass, and thereupon brought the latent prints to the identification office where they were photographed and "blown up." He secured prints of a man's right forefinger and the right middle finger.

The next midnight roll call having been completed about 12:01 A.M., on September 2, Trammelle and Davis having reported for duty at the Twelfth Precinct, a notation was read off from the teletype from Central Headquarters that the Johnson warehouse had been entered the previous night. They went back to the Identification Bureau of the Metropolitan Police to determine whether or not fingerprints had been found at the scene by the examining officers, and then learned of Miller's discovery. Trammelle asked that the officers in the Identification Bureau check the fingerprints, and Trammelle was informed that the fingerprints had been identified as those of Trilling found on the premises.² Trammelle and Davis then went looking for Trilling whom they placed under arrest at his home about 5:30 in the morning of September 2.

Officers Trammelle and Davis questioned Trilling about the break at the Johnson warehouse, both in the car on the way to the lockup and after their arrival. Trilling denied all knowledge of the episode.³ Trilling was booked at No. 12 Precinct at 7:14 A.M., September 2, 1955, and later was transferred to the Central Cell Block at 7:40 A.M. Neither Trammelle nor Davis had any further conversation with Trilling after he had been booked.

Without more, there not only was ample "probable cause" for the arrest of Trilling, but there was overwhelmingly enough evidence to sustain his conviction. If there never had been another count in this case, and if there had been no other evidence, it would seem impossible that any jury could have failed to convict Trilling of breaking into the Johnson warehouse with intent to steal.

But there was more. The blown up photographs of the fingerprints found by Technician Miller at the scene were compared with blown up photographs of current fingerprints of Trilling taken after his arrest, on September 2nd. Miller's qualifications as a technician were conceded. A bench conference established that immediate identification of the Trilling prints, found at the warehouse, could be made since the officers could readily compare the latent prints found on the glass with those of record following Trilling's earlier conviction. The latter could speedily be located since Trammelle had Trilling's name. The trial judge pointed out that reference to the 1948 prints should not be made lest counsel in that manner get before the jury the existence of Trilling's prior record. Defense counsel sought, and was granted, permission to examine the witness before the exhibits should be offered in evidence.

Miller testified that throughout the history of the use of fingerprints for purposes of identification, it had never been shown that any two persons' fingerprints have been the same. Questioned by the judge as to whether or not there was a minimum basis upon which points of identification might depend, he testified that some eight or nine such points constitute a minimum. In the exhibits before the court he ruled off some twenty points of identification and showed that there were more than twice the minimum number of points established and others that could have been ruled off. Defense counsel elicited from the witness an explanation of the four different basic types of fingerprints, loops, whorls, arches and tinted arches. After the prints had been received in evidence as Government's exhibits (one set, those found at the warehouse, the other set, those made at headquarters following the arrest), cross examination went forward, each member of the jury having been handed photographs of the exhibits. The witness described the process of identification. The fingertips of the hand and the soles of a person's foot are covered with small holes which secrete oils and perspiration which form in lines very much like a chain. Tiny as a pinpoint, each of these holes makes its imprint. The witness explained the piece of glass from the Johnson warehouse window had been grasped by one whose thumb was on the outside and whose fingers were on the inside, thus making an impression which loomed up after being dusted with a fine black powder which adhered to the oil or perspiration which had come from the minute holes in the fingers. Defense counsel next brought out that a second point of...