U.S. v. Prescott

• Decision Date: 14 September 1978
• Docket Number: No. 77-2574,77-2574
• Citation: 581 F.2d 1343
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Saundra PRESCOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1343

581 F.2d 1343

UNITED STATES of America, Plaintiff-Appellee, v. Saundra PRESCOTT, Defendant-Appellant.

No. 77-2574.

United States Court of Appeals, Ninth Circuit.

Sept. 14, 1978.

Michael H. Weiss, San Francisco, Cal., for defendant-appellant.

Lawrence Edelman, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY, CUMMINGS, ^* and SNEED, Circuit Judges.

DUNIWAY, Circuit Judge:

In this case we decide two principal questions. One is whether, when the police have probable cause to believe (a) that a person has committed a felony and (b) that he is in a particular house, they may forcibly enter and search for and seize him without first obtaining a warrant, in the absence of exigent circumstances. The second is whether, and if so to what extent, a refusal by the occupant of a house to admit the police, when they do not have a warrant, may be used against the occupant, when she is charged with assisting a federal offender in order to hinder or prevent his apprehension in violation of 18 U.S.C. § 3, which defines an accessory after the fact. Our answer to the first question is that a warrant must be obtained. Our answer to the second question is that the refusal may not be used.

I. FACTS

In early 1977, federal agents investigating a mail fraud scheme concluded that one Duvernay was using stolen credit cards to obtain merchandise by mail. On January 13, 1977, Postal Inspector Russell supervised a controlled delivery to 551 Grove Street, San Francisco, one of several addresses employed by Duvernay, of three parcels containing clothing and electronic calculators ordered in this fraudulent manner. Before starting the delivery, Inspector Russell obtained a search warrant for 546 Grove Street, Duvernay's apartment. He did not, however, obtain a warrant for Duvernay.

546 Grove Street is located on the upper floor of a two-story building which also contains apartments numbered 540, 542 and 544 Grove. On January 13, the day of the controlled delivery, 540 Grove was boarded up and 542, the adjacent apartment on the lower floor, was vacant. 544 Grove, the apartment next door to 546 on the upper floor, was occupied by the appellant, Saundra Prescott, her friend James Johnson, and her young daughter.

Early on the morning of the 13th, a team composed of a dozen federal agents and local police officers placed the entire 500 block of Grove Street under surveillance. At approximately noon, a United Parcel Service truck arrived in the area. In it were nine packages, three of which were those that had been specially prepared for the controlled delivery to Duvernay. He appeared, signed for all of the packages on the sidewalk, and then, with the aid of two friends, carried the packages into the building at 540/542/544/546 Grove Street. After delaying a few minutes to interview the truck driver and check the signature on the receipt, a group of officers followed.

Upon entering the building, the officers headed straight for 546 Grove, assuming that Duvernay would be found in his own apartment. To their surprise, they found that the front door to 546 had been padlocked from the outside. Realizing that Duvernay could not have entered the apartment and padlocked the door behind him, they then proceeded to search elsewhere. After ascertaining that Duvernay was not hiding in 542, the vacant apartment on the lower floor, some of the officers ran around to the back of the building and entered 546 through the rear door. Duvernay was not there. Inspector Russell, meanwhile, went to 544 and knocked on the front door. Prescott responded. Russell identified himself as a postal inspector and told Prescott that he was looking for her next-door neighbor. Prescott lied, saying that no one was in the apartment except her husband, her daughter, and herself. In fact, Duvernay had appeared with the packages in hand only minutes before and Prescott had voluntarily admitted him to her apartment.

Russell left for a few minutes to confer with the officers who had searched 546. Having satisfied himself that Duvernay was not there, Russell returned to 544 with Officer Foley of the San Francisco Police Department. This time the two knocked at the back door and Prescott again responded. Communicating through a glass pane in the closed door, which Prescott declined to open, Russell and Foley identified themselves, displayed their credentials, and announced that they were looking for Duvernay. Prescott stated, "I don't know the person next door. We have only been here a short while." Russell exhibited a mug shot of Duvernay and informed Prescott that Duvernay was wanted for mail fraud. Again Prescott insisted that no one was in the apartment except her husband, who was sleeping, and her daughter, who was ill. Russell then told Prescott that she could be guilty of an offense if she were harboring Duvernay and asked permission to search the apartment. Prescott asked, "Do you have a warrant?" and Russell replied that he did not. Prescott said nothing in response but steadfastly declined to unlock her door.

At this point, Russell and Foley left and searched briefly for Duvernay elsewhere. Finding nothing, they returned to the back door of 544 and told Prescott that they wished to speak to her husband. She agreed and returned a few minutes later with James Johnson, who identified himself as James Prescott. Russell and Foley told Johnson that they were looking for Duvernay and again requested permission to search the apartment. Johnson refused.

Russell and Foley then telephoned the United States Attorney's Office to ask for advice. At the conclusion of the conversation they returned and told Johnson that if the door were not unlocked in three seconds, they would enter the apartment forcibly. Johnson did not unlock the door and on the count of three the officers kicked it in. They immediately located Duvernay inside. Nine packages, including the three prepared for the controlled delivery, were also found. All of the packages had been opened and many of the mailing labels had been removed. Fragments of partially burned labels were found floating in the toilet bowl.

Prescott was charged as an accessory after the fact, and convicted.

II. VALIDITY OF THE INDICTMENT

Prescott claims that the evidence presented to the Grand Jury was insufficient to warrant her indictment. The Grand Jury proceedings were not transcribed; hence there is nothing in the record to show what evidence the government did, or did not, present. Prescott merely speculates.

An indictment, regular on its face and returned by a legally constituted and unbiased Grand Jury, is presumed to be founded upon sufficient evidence, and a heavy burden is placed upon one who challenges this presumption of validity, Martin v. United States, 9 Cir., 1964, 335 F.2d 945, 949. Prescott's showing is plainly insufficient.

III. A WARRANT IS REQUIRED

Prescott moved to suppress all fruits of the entry into her apartment, including all evidence that Duvernay and his packages had been found inside, because the officers had neither a warrant nor an excuse for not obtaining one. The district judge denied the motion. He took the view that the officers needed no warrant to enter the apartment because they had probable cause to arrest Duvernay and to believe that he was inside. Believing, as he did, that a warrant was not required in any event, the district judge took no evidence, and made no ruling, on the issue of exigent circumstances. "Forget the exigent business," he told defense counsel, who attempted to argue that the officers could have obtained a warrant quickly and easily, without creating an undue risk that evidence would be destroyed or that Duvernay would flee. "It seems to me that they had probable cause to arrest Mr. Duvernay . . . I believe they could come in there and get him and I'm not really much impressed with the facts." R.T. 31.

The court cited section 844 of the California Penal Code as supporting his view that no warrant was required. That statute, which requires a peace officer desiring to effect an arrest inside a dwelling to demand admittance and explain his purpose before forcibly entering, assumes a lawful entry and does not purport to excuse, in all situations the failure to first obtain a warrant. In any event, federal law, not state law, is controlling here on the question of whether a warrantless search or seizure is lawful. To the extent that he based his ruling on the California statute, the district judge was therefore in error.

Because the district court declined to rule on the issue of exigent circumstances and because the evidence adduced at the suppression hearing is insufficient to permit us to do so, we are squarely presented on this appeal with the question of whether, absent an emergency, police officers who have probable cause to arrest one whom they reasonably believe to be in a dwelling may enter the dwelling without a warrant in order to carry out the arrest.

The Supreme Court has never resolved this issue. It has held that police need no warrant to arrest a felony suspect on probable cause in a public place; United States v. Watson, 1976, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598; United States v. Santana, 1976, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300. However, the Court has expressly reserved, on numerous occasions, the "grave constitutional question" of whether an "entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment." Jones v. United States, 1958, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514; See also, United States v. Watson, supra, 423 U.S. at 418, fn. 6, 96 S.Ct. 820; Gerstein v. Pugh, 1975, 420 U.S. 103, 113, n.13, 95 S.Ct....