U.S. v. Bethea

• Decision Date: 18 May 1979
• Docket Number: No. 78-5021,78-5021
• Citation: 598 F.2d 331
• Parties: UNITED STATES of America, Appellee, v. Joseph BETHEA, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 331

598 F.2d 331

UNITED STATES of America, Appellee, v. Joseph BETHEA, Appellant.

No. 78-5021.

United States Court of Appeals, Fourth Circuit.

Argued March 8, 1979.

Decided May 18, 1979.

Mark L. Waple, Fayetteville, N. C., for appellant.

Herman E. Gaskins, Jr., Asst. U. S. Atty., Raleigh, N. C. (George M. Anderson, U. S. Atty., Raleigh, N. C., on brief), for appellee.

Before RUSSELL and WIDENER, Circuit Judges, and MERHIGE, United States District Judge for the Eastern District of Virginia, sitting by designation.

MERHIGE, District Judge.

Appellant-defendant, Joseph Bethea, having been found guilty by a jury of bank robbery and armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and having been sentenced by the trial court to a term of twenty years for armed bank robbery, appeals.

The government, in its case at trial, introduced into evidence two money straps which were taken from the victim bank at the time of the robbery, and it is as to the admission of this evidence which appellant challenges, contending that same was secured by virtue of an illegal search and seizure.

The search which defendant attacked in an unsuccessful motion to suppress at the trial court level and now attacks on appeal was carried out on July 1, 1977, in Newport News, Virginia by five law enforcement officers, including two Federal Bureau of Investigation agents, all of whom were dressed in civilian clothing. Having been notified that a federal warrant had been issued for Bethea's arrest, and having determined by a telephone call that he, Bethea, was at 882-A 35th Street, Newport News, Virginia, the home of his mother, the two agents and a local policeman approached the rear or kitchen door of that residence while two local police officers approached the front door. An agent knocked at the rear door and identified himself as an agent of the Federal Bureau of Investigation to defendant's seventeen year old sister, Jessie. The agent then informed her that he had a warrant for the arrest of Joseph Bethea. Ms. Bethea opened the door and yelled, "Joe". The agents and policeman entered the apartment and found defendant in the custody of the other officers who had apprehended him after he attempted to leave through the front door. Defendant was immediately advised of his constitutional rights and further that he was a suspect in a North Carolina bank robbery. One of the local police officers talked to Jessie Bethea and determined that only she and defendant were present in the apartment. Ms. Bethea agreed to show the officer where defendant had been "staying" since his arrival in Newport News. She then pointed out her bedroom and stated that defendant had spent some nights in that room since he had recently arrived at the apartment. The police officer requested her permission to search the room and she agreed, whereupon he informed her she had a right to refuse any search as the officers did not have a search warrant. Her response to that information was that "You can search, and I will help you." She thereupon turned to a nightstand and began searching, while the officers searched the chest of drawers and found two money straps, the seizure of which is here contested by appellant.

Prior to trial, the district court held an evidentiary hearing on Bethea's motion to suppress the evidence seized in the bedroom search. Bethea claimed that there was no valid consent for the search and that the officers violated 18 U.S.C. § 3109 by their entries into his mother's residence.

After hearing testimony from Bethea, Bethea's mother and sister, and from three of the arresting officers, the district judge denied Bethea's motion to suppress. The judge did not issue findings of fact or conclusions of law in support of his decision, and nothing in the record indicates that appellant ever requested him to do so.

The jury was then brought back into the courtroom, and defendant was tried and found guilty of the bank robbery charges. The money straps seized in the bedroom search, which appellant had sought unsuccessfully to have suppressed from evidence, were introduced into evidence at the trial, and identified by a teller of the bank which had been robbed as the money straps which she had given to the robber.

In this appeal, Bethea raises the same issues which he argued before the trial court in the hearing on his motion to suppress: (1) Did the law enforcement officers violate 18 U.S.C. § 3109 by their entry into the Bethea residence through the front and rear doors? (2) Did Bethea's sister have the authority to consent to a search of the bedroom in which Bethea had been staying? (3) Did Bethea's sister knowingly and voluntarily consent to the police search of the bedroom?

The Court shall consider these issues seriatim.

Bethea first contends that the law enforcement officers who conducted the search of his mother's residence violated 18 U.S.C. § 3109 by entering the house without first receiving permission to so do from any of the occupants. This Court, however, finds no reversible error in the trial judge's refusal to suppress the seized money straps due to an alleged violation of 18 U.S.C. § 3109, which provides, in pertinent part, that

An officer may break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance . . . .

Bethea contends that the federal law enforcement officers violated the requirements of 18 U.S.C. § 3109 by failing to request permission to enter the Bethea residence and by failing to wait to enter until an occupant of the house had first either granted or denied the officers permission to so do.

When, as in this case, a district court denies a motion to suppress evidence, without making or being requested to make findings of fact, the result will be upheld on appeal if any reasonable view of the evidence looked at in the light most favorable to the government, will sustain the denial. United States v. Smith, 543 F.2d 1141 (5th Cir. 1976), Cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977); United States v. Miner, 484 F.2d 1075 (9th Cir. 1973); Scarbeck v. United States, 115 U.S.App.D.C. 135, 317 F.2d 546 (1962), Cert. denied,374 U.S. 856, 83 S.Ct. 1897, 10 L.Ed.2d 1077 (1963).

In reviewing the record by this standard, there clearly is sufficient evidence to support the trial court's implicit finding that the officers did not violate 18 U.S.C. § 3109 in either their front or rear door entries into the residence. ¹ At the hearing on appellant's motion to suppress evidence, an FBI agent who had entered the house through the rear door testified that the local police officer told him that they had entered the house through the front door to stop the appellant in his attempt to flee. In this situation the officers were not required to knock or to announce their entry; a generally recognized exigent circumstance which will excuse law enforcement officers from complying with the "knock and announce" requirements of 18 U.S.C. § 3109 is entry into the house to prevent the suspect's attempted escape. See Sabbath v. United States, 391 U.S. 585, 591, n.8, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); Rodriquez v. Jones, 473 F.2d 599, 607 (5th Cir. 1973), Cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973); United States v. Wylie, 149 U.S.App.D.C. 283, 291, n.53, 462 F.2d 1178, 1186, n.53 (1972); United States v. Cisneros, 448 F.2d 298, 304 (9th Cir. 1971); United States v. Manning, 448 F.2d 992, 1001-02 (2d Cir. 1971), Cert. denied, 404 U.S. 995, 92 S.Ct. 541, 30 L.Ed.2d 548 (1971).

Nor was the rear door entry violative of 18 U.S.C. § 3109. At the suppression hearing, Jessie Bethea testified that when the officers came to the house, the inside rear, or kitchen, door, was open but the screen door was shut. According to her testimony, one officer showed her his badge, after which she partially opened the screen door. Her testimony was to the effect that the officer then further opened the screen door and entered the house as she called her brother's name.

This contested entry was not the type of police entry which 18 U.S.C. § 3109 was designed to prevent. The agent both identified himself as a law enforcement officer and told Jessie Bethea that he and the other officers were there with a warrant for the arrest of her brother, Joseph, the appellant herein. Jessie Bethea partially opened the screen door, and the officers further opened the door and entered the home without any reported protest or resistance from Ms. Bethea. These particular facts do not reveal any "breaking" open of the door which is prohibited by the statute. See United States v. Syler, 430 F.2d 68, 70 (7th Cir. 1970) (entry by police into house without force and without resistance from defendant after defendant partially opened screen door was found not violative of 18 U.S.C. §...