U.S. v. Campbell

• Decision Date: 29 June 1978
• Docket Number: Nos. 619,620,D,s. 619
• Parties: UNITED STATES of America, Appellee, v. David CAMPBELL and Michael Tartt, Defendants-Appellants. ockets 77-1418, 77-1419.
• Court: U.S. Court of Appeals — Second Circuit

Page 22

581 F.2d 22

UNITED STATES of America, Appellee, v. David CAMPBELL and Michael Tartt, Defendants-Appellants.

Nos. 619, 620, Dockets 77-1418, 77-1419.

United States Court of Appeals, Second Circuit.

Argued Feb. 8, 1978.

Decided June 29, 1978.

Ralph S. Naden, New York City, for defendant-appellant David Campbell.

Julius Wasserstein, Brooklyn, N. Y., for defendant-appellant Michael Tartt.

Lawrence Iason, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, Robert J. Jossen, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before FEINBERG, MANSFIELD and VAN GRAAFEILAND, Circuit Judges.

MANSFIELD, Circuit Judge:

David Campbell and Michael Tartt appeal from judgments of conviction entered in the Southern District of New York following an eight-day trial before Judge Lawrence W. Pierce and a jury. Tartt was convicted on all three counts of an indictment that charged him with conspiracy to commit armed bank robbery, 18 U.S.C. § 371, bank robbery, 18 U.S.C. § 2113(a), and armed bank robbery, 18 U.S.C. § 2113(d). Campbell was convicted only on the conspiracy count, and acquitted on the two substantive counts. ¹

The principal claim on appeal is that the district court committed reversible error in not excluding evidence seized from the defendants' apartment. Appellant Tartt also challenges the admission of certain identification testimony at trial. Finding these claims unpersuasive, we affirm.

The essential facts of the crime are not disputed. On April 4, 1977, at approximately 10:30 A.M., three men, including Wallace Hall, who testified against appellants at trial, robbed a branch of the Chemical Bank Hall was taken back to the bank where he was identified by eye-witnesses as one of the robbers. He was then questioned by New York City police officers and federal agents, and between 1:00 and 2:00 P.M. in the afternoon he confessed to his participation in the crime. Hall admitted that his accomplices were friends known to him only as "Dave" and "Mike," and that they lived in the same apartment building where Hall lived. He also gave the officers general descriptions of the two men.

at Cathedral Parkway and Broadway in New York City. Approximately.$19,000 was taken. Two of the robbers were armed, one with a revolver, the other with a sawed-off shotgun. Moments after the robbery Hall became separated from his accomplices during their getaway, and was arrested in a subway station near the bank.

Between 2:00 P.M., when this information was obtained from Hall, and 6:00 P.M., when appellants were arrested, police detectives and federal agents worked together on the investigation. In addition to sharing responsibility for the continued questioning of Hall, they also verified the information he gave them concerning the whereabouts of "Mike" and "Dave," interviewed witnesses at the bank, and arranged to have the bank's surveillance photographs developed. ²

At approximately 4:15 P.M. FBI Agent Martinolich, the case agent in charge of the investigation, telephoned an Assistant United States Attorney to obtain authorization for making the arrests of appellants. According to Martinolich's testimony at the pretrial suppression hearing, the purpose of this procedure is to permit the United States Attorney's staff to make a legal judgment as to whether or not an arrest should be made and whether or not a warrant should be obtained. The Assistant with whom Martinolich spoke authorized the agents to make the warrantless arrests.

Martinolich then picked up the developed surveillance photographs and met with other agents and detectives to plan the arrest procedures. Campbell and Tartt were arrested in their respective apartments at approximately 6:00 P.M., and various items of evidence were seized during the arrests. ³

The defendants moved prior to trial to suppress this evidence on the ground that the warrantless arrests were unlawful, and that the evidence seized during the arrests was obtained in violation of their Fourth Amendment rights. Judge Pierce denied the motion after a five-day hearing, holding that exigent circumstances justified the warrantless arrests, and finding no other

basis for suppressing the evidence seized from appellants' apartments.

DISCUSSION

For reasons that are thoroughly analyzed and explicated in our recent decision in United States v. Reed, 572 F.2d 412, 417-424 (2 Cir. 1978), the warrantless entry of law enforcement officers into the private home of a suspect, for the purpose of making an arrest supported by probable cause, is barred by the Fourth Amendment in the absence of "exigent circumstances," see United States v. Killebrew, 560 F.2d 729 (6th Cir. 1977); United States v. Calhoun, 542 F.2d 1094 (9th Cir. 1976), Cert. denied, 429 U.S. 1064, 97 S.Ct. 792, 50 L.Ed.2d 781 (1977); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (En banc ). We have thus resolved in this circuit an issue that has long been left open by the Supreme Court. See Coolidge v. New Hampshire, 403 U.S. 443, 480-81, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Watson, 423 U.S. 411, 418 n. 6, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

The question before us on this appeal, therefore, is whether the circumstances surrounding the arrests of Campbell and Tartt were sufficiently "exigent" to excuse the agents' failure to obtain a warrant. The answer requires us first to examine the meaning and limits of the term "exigent" in order to determine whether the circumstances here may be so labelled.

The phrase "exigent circumstances" refers generally to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. For instance, officers in "hot pursuit" of an armed robber who has just committed the crime may follow him into his home without obtaining a warrant.

"Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.

" . . . Here, the seizures occurred prior to or immediately contemporaneous with Hayden's arrest, as part of an effort to find a suspected felon, armed, within the house into which he had run only minutes before the police arrived. The permissible scope of search must, therefore, at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape." Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967).

Such "hot pursuit," however, is but an illustration, not a definition of the kind of circumstances that justify a warrantless entry for the purpose of making an arrest or search. Dorman v. United States, supra, 140 U.S.App.D.C. at 319, 435 F.2d at 391. The actual commission of a crime within a dwelling may also be sufficient to permit an immediate entry. Police who witness an attempted homicide or other crime of violence being committed by a person in his home need not delay entry while first obtaining a warrant, since to do so would only serve to tolerate the commission of the crime itself.

"When law enforcement officers have probable cause to believe that an offense is taking place in their presence and that the suspect is at that moment in possession of the evidence, exigent circumstances exist. Delay could cause the escape of the suspect or the destruction of the evidence." United States v. Watson, 423 U.S. 411, 435, 96 S.Ct. 820, 833, 46 L.Ed.2d 598 (1976) (J. Marshall, dissenting). ⁴

In short, circumstances which, when viewed as of the time of entry, would lead a reasonable person to believe that unless an entry and arrest are made immediately the suspect may escape, destroy essential evidence or continue the commission of an on-going crime, represent exigencies of the type justifying immediate police action on probable cause without first obtaining a warrant. See United States v. Santana, supra, 427 U.S. at 44, 96 S.Ct. 2406 (J. Stevens, concurring); United States v. Titus, 445 F.2d 577, 578 (2d Cir. 1971), quoting Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). Among the factors deemed relevant in determining whether the circumstances are sufficiently exigent to permit a warrantless entry and arrest are:

"(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect 'is reasonably believed to be armed'; (3) 'a clear showing of probable cause . . . to believe that the suspect committed the crime'; (4) 'strong reason to believe that the suspect is in the premises being entered'; (5) 'a likelihood that the suspect will escape if not swiftly apprehended'; and (6) the peaceful circumstances of the entry." United States v. Reed, supra, 572 F.2d 412, 424 (2d Cir. 1978), quoting Dorman v. United States, supra, 140 U.S.App.D.C. 320-321, 435 F.2d 392-93 (footnotes omitted).

Applying these principles to the present case, we agree with Judge Pierce that the government has met the burden of showing exigent circumstances to justify the warrantless arrests of Campbell and Tartt in their apartments. The crime was a serious and violent one armed robbery, punishable by imprisonment up to 25 years. The arrests were made at 6:00 P.M. on April 4, 1977, while it was still daylight. ⁵ The arrests were supported strongly by probable cause. Based on information obtained from Hall, which was corroborated by the bank surveillance photos and witnesses to the robbery, there was good reason to believe that Campbell and Tartt had participated in the robbery, that they were then in their apartments, that they were armed, and...