United States ex rel. Dyton v. Ellingsworth, 111.

• Decision Date: 29 October 1969
• Docket Number: No. 111.,111.
• Citation: 306 F. Supp. 231
• Parties: UNITED STATES of America ex rel. Kenneth G. DYTON, Petitioner, v. John C. ELLINGSWORTH, Warden, Sussex Correctional Institution, Respondent.
• Court: U.S. District Court — District of Delaware

306 F. Supp. 231

UNITED STATES of America ex rel. Kenneth G. DYTON, Petitioner, v. John C. ELLINGSWORTH, Warden, Sussex Correctional Institution, Respondent.

No. 111.

United States District Court D. Delaware.

October 29, 1969.

Stanley C. Lowicki, Wilmington, Del., for petitioner.

John P. Daley, Deputy Atty. Gen., Wilmington, Del., for respondent.

OPINION

LATCHUM, District Judge.

Kenneth G. Dyton, petitioner in this habeas corpus proceeding, was tried on April 1, 1968 in the Superior Court of the State of Delaware in and for New Castle County, and convicted by the Court sitting without a jury for the illegal possession of a hypodermic needle and a narcotic drug. He was sentenced on May 16, 1968 to serve a three year term of imprisonment on the first charge and a ten year term of imprisonment and fined $2000 on the second charge. Both terms of imprisonment were to run concurrently, and the last seven years of imprisonment on the second charge were suspended and a probationary period of the same length imposed. The convictions were affirmed by the Delaware Supreme Court on January 16, 1969.¹

The principal issue before this Court was raised and decided adversely to the petitioner in the state courts at the time of trial and in the subsequent appeal. Consequently petitioner's state remedies have been effectively exhausted even though he has not instituted any state post-conviction proceeding and the present petition is properly before this Court. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), rehearing den. 345 U.S. 946, 73 S.Ct. 827, 97 L.Ed. 1370 (1953).

Petitioner's primary contention is that police officers entered an apartment in which he was visiting before announcing their identity, authority, and purpose; that the officers had no justification for such failure to give notice; and that therefore, because the officers' method of entering the apartment offended federal constitutional standards of reasonableness, the subsequent search and seizure were invalid. Thus petitioner concludes that the state courts erroneously denied his motion to suppress the evidence obtained by the allegedly illegal search and seizure.

On October 8, 1969 a hearing was held in this Court in order to supplement and clarify the testimony contained in the state court trial transcript. The hearing was required for two reasons. First, it was necessary because of the ambiguous basis for the trial court's conclusion that the search and seizure were "reasonable." It was unclear whether the trial court found no legal requirement for the police to announce their authority and purpose before entry, or whether it found proper notice had been given prior to entry, or whether the trial court found that other circumstances existed which dispensed with such notice. The trial court's failure to articulate any legal standards or to make findings of fact afforded an inadequate basis for review by the appellate court. Secondly, a hearing in this Court appeared justified in view of the Supreme Court's independent factual determination from the trial transcript that the police officers gave a twenty second warning of their identity and purpose before entering the apartment which it held fully comported with the requirements of the Delaware common law announce and knock rule. After considering the state court trial record as a whole, this Court concluded that the Supreme Court's independent factual determination of that time interval did not appear to be fairly supported by that record. Consequently, in order to clarify the state court record and to determine the constitutional issue presented here, a further hearing was required in this Court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

From the state trial record as supplemented by the testimony at the hearing in this Court, the following facts appear:

On June 30, 1967, Sergeant Lennox Smith of the Wilmington Bureau of Police obtained a search warrant for the apartment of William A. Jones, Jr. located on the second floor of 701 East 7th Street, Wilmington. At about 9:50 a. m. on that date Sergeant Smith and four other vice squad officers² proceeded to the apartment building where Jones lived. The officers entered the open door of the apartment building on the first floor and climbed the steps leading to Jones' apartment on the second floor. As the officers approached Jones' apartment, they heard voices emanating therefrom and noticed that the door was ajar for about a half inch to an inch. Sergeant Smith knocked on the door. His knock caused the door to swing open about six to eight inches. When the door opened to that extent, the petitioner and Jones, who were seated in the apartment to the right of the door, came into full view of Sergeant Smith and Officer Maloney who were standing at the door outside of the apartment. Petitioner, who was seated about three feet away from the door, and Jones, who was sitting about eight feet away, stopped talking upon hearing the knock and turned and looked directly at the officers standing at the door. Neither of the occupants arose, made any effort to answer the knock or said anything to the officers.

The officers were not in police uniforms but Sergeant Smith recognized the petitioner as a City Housing Inspector whose office was directly down the hall in the City Building from the vice squad's office. In fact, Smith and Dyton often spoke and talked to one another while going to and from their offices. Smith and Jones also knew one another. Smith had led a raid on Jones' apartment on May 10, 1968, a little over a month before the instant confrontation occurred, and had also on one or two occasions talked to Jones on the street.

About twenty seconds elapsed while the police and occupants confronted each other from these positions. It was then that Smith pushed the door all the way open, walked into the apartment and simultaneously with entering announced that they were police officers with a search warrant. Smith and Maloney proceeded to stand in front of Dyton and Jones, who remained seated, again identified themselves, stated that they had a search warrant for the apartment and all occupants and commenced to read the warrant to them.

While the search warrant was being read, Sergeant Smith saw the petitioner surreptitiously remove a small pink tissue from his pocket and stuff it out of view between the cushions of the chair in which he was seated. Upon observing this, Smith told Dyton to stand up, retrieved the tissue from the chair and found it was wrapped around three glassine packets containing heroin. On retrieving the tissue and examining its contents, Smith placed Dyton under arrest for possession of heroin and told Officer Maloney to search his person. In petitioner's right-hand trouser pocket was found a hypodermic needle, an eyedropper, and certain miscellaneous items, all of which constituted a "home-made" device for injecting liquids into the body. These items were admitted into evidence at trial over petitioner's objections.

The principal issue raised by the present petition is whether the evidence so seized should have been excluded from the trial as the product of an unreasonable search and seizure prohibited by the Constitution of the United States. More narrowly stated, the question is whether, under the circumstances of this case, the entry into the apartment by the city police officers armed with a valid search warrant without announcing their authority and purpose outside of the apartment violated constitutional safeguards against unreasonable searches and seizures.

The Fourth Amendment's prohibition against unreasonable searches and seizures, with its accompanying sanctions that evidence so obtained must be excluded at trial, is applicable to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), rehearing den. 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961). In determining whether the search is reasonable, federal constitutional standards must be applied. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). One of the requirements of reasonableness under federal standards is that police officers must, prior to entry upon private premises to conduct a search, make an announcement of their authority and purpose for seeking entry unless there are circumstances excusing their failure to do so. Ker v. California, supra.

The testimony of the police officers clearly indicates that verbal notice of their identity and purpose was not given except contemporaneously with their entry into the apartment. The Delaware Supreme Court, however, as noted above, based its conclusion that the search was reasonable on its finding that there had been a twenty second interval between announcement of identity and purpose and the subsequent entry of the apartment. Since this crucial premise was proved inaccurate by the testimony adduced at the evidentiary hearing in this Court, it must now be determined whether the facts found by this Court compel a conclusion that the police action was unreasonable.

The constitutional validity of the police action here should be evaluated in the light of the historical development of the knock and announce rule, the values protected by such a rule, and the specific procedures which have been recognized as necessary to fulfill the purposes of the rule. Extensive historical commentary is not necessary here, but the basic outline can be briefly sketched.³ The United States Supreme Court has recognized that long before the adoption of the Bill of Rights, it was firmly established that the fundamental liberty of an individual included protection against unannounced police entries. As early as Semayne's Case, 5 Co.Rep. 91a, 91b, 77 Eng.Rep. 194-195 (1603), it was declared "in all cases when the King is a party, the Sheriff (if the doors be not open) may break the party's house, either to arrest him, or to...