United States v. Brown

• Decision Date: 13 September 1972
• Docket Number: No. 71-1568.,71-1568.
• Citation: 151 US App. DC 365,467 F.2d 419
• Parties: UNITED STATES of America, Appellant, v. Roland W. BROWN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

151 US App. DC 365, 467 F.2d 419 (1972)

UNITED STATES of America, Appellant, v. Roland W. BROWN.

No. 71-1568.

United States Court of Appeals, District of Columbia Circuit.

Argued June 6, 1972.

Decided September 13, 1972.

As Amended September 13 and October 2, 1972.

Mr. Henry F. Greene, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry, and John F. Evans, Asst. U. S. Attys., were on the brief, for appellant. Mr. Harold H. Titus, Jr., U. S. Atty., also entered an appearance for appellant.

Mr. Walter R. Choroszej, Washington, D. C. (appointed by this Court), for appellee.

Before Mr. Justice CLARK^* of the Supreme Court of the United States, and LEVENTHAL and ROBB, Circuit Judges.

Mr. Justice CLARK:

Roland W. Brown, defendant-appellee, stands charged with eight co-defendants in a multiple count indictment alleging violations of the federal narcotics laws. The indictment is based upon the seizure by police officers of a cache of narcotics and paraphernalia from a Vermont Avenue apartment in the District of Columbia where Brown was spending the night with a friend. The entry into the apartment and the seizure were made on the authority of an arrest warrant that the officers were attempting to execute on Brown, charging him with first degree murder.

The District Court sustained a motion to suppress the proceeds of the seizure on the grounds that the officers did not have probable cause to believe that Brown was in the apartment; and even if they did, the law requires a search warrant prior to entering a residence other than that of the suspect, absent exigent circumstances preventing the obtaining of a search warrant.¹

We find that under the peculiar circumstances here that the officers had reason to believe that Brown was in the apartment and that it was, therefore, not necessary to secure a search warrant. We therefore reverse the judgment and remand the case for trial.

1. The Facts:

On March 17, 1969, police officers obtained an arrest warrant for Brown, charging first degree murder but they were unable to locate him. They checked the usual sources, such as relatives, friends and hang-outs without success. They contacted a source "connected with the same operation as Mr. Brown was involved in" and were told that Brown's number-one girl friend, Nadine Brooks, who was "small, very good looking, with short hair, a light-skinned Negro" lived near Thomas Circle, N.W. This information was consistent with other information that the informant had given in the past and was considered reliable. However, a canvass of the apartments and mail boxes near Thomas Circle, N.W., failed to reveal a "Nadine Brooks". A further check was made of police records —including Detective Riggs' notebook— and the latter had a notation that Brown's "number one girl friend" was "Nadine Frazier" rather than "Nadine Brooks". The Officers again checked the apartments and mail boxes near Thomas Circle, N.W., and discovered an apartment and mail box in the name of "Nadine Frazier" at 1239 Vermont Avenue, Apartment 907. The Officers displayed a series of photographs of various suspects involved in the murder investigation to the security guard of the apartment building located at 1239 Vermont Avenue, N.W. He identified one of the photographs as being a party that he sometimes observed frequent the building in company with Miss Frazier. The party was Brown. The guard's description of Miss Frazier matched that given by the earlier informant for "Nadine Brooks," i. e., "a short, light-skinned, short-haired, very attractive Negro young lady." On the next day—March 24—the Officers returned to the Vermont Avenue apartment building and interviewed the resident-manager. She showed them a layout of the building and the location of Apartment 907 together with the general location of its windows on the outside of the building. She could not assist them with reference to the inside of Apartment 907 because the occupant had put a private lock on the door and the manager had no key to the latter.

The Officers then established a surveillance of the Vermont Avenue apartment building. On March 24, 1969, Detectives Riggs and Chaillet of the Homicide Squad parked their car on the north side of Vermont Avenue just northeast of N Street and began to observe the entrance to the apartment building at 1239 Vermont Avenue and at the same time the general area of the windows in Apartment 907 of the building. They would park for a while and then cruise up and down 14th Street, N.W., always returning to the approximate spot where they had parked previously. The weather was very bad; it was raining and misty. Between 11:00 and 11:30 p. m. the Officers observed two men—one a tall Negro and the other a very short Negro—walking diagonally across the intersection from the north corner of Vermont to the south corner on which the apartment building was located. The two men approached the entrance to the apartment building and opened its front door by means of their personal key. After entering, the Officers lost sight of the men in the lobby "until a short time later a light came on in the window in the vicinity of which we thought was Apartment 907." While both Officers concluded that they "had no reason to believe that that was the particular subject Brown we were interested in" at the time the tall and short men entered the apartment building, the Officers testified that "the fact that the lights in the vicinity of Miss Frazier's apartment came on a short time later gave us, we felt, some instance assurance to believe that he was in there."

The Officers did not enter the apartment building at this time. Their tour of duty was over at midnight and they reported to police headquarters. They told their superior, Sergeant Crooke, that "there was a good possibility that Mr. Brown was in Nadine Frazier's apartment." They also advised him that two or three days earlier Detective Morris had told them that he had received information that Brown had been seen in the area of the 2600 block of Douglas Road, S.E.; that they had checked the No. 11 precinct office and found a complaint on a stolen bicycle at 2621 Douglas, S.E. While investigating it, they inquired about Brown and noticed a mail box in the lobby of that building with the letters RAB scratched on its surface, which might refer to "Rabbit" which was Brown's nickname. The Officers told Sergeant Crooke that Brown "would very possibly be at either of these two locations."

Sergeant Crooke decided to raid both locations at 5:20 a. m. The evidence indicates without any contradiction that early morning is the best time to apprehend a fugitive, especially a dangerous one, like Brown, who is believed to be armed. As Sergeant Crooke put it: "When we are looking for a person . . . if we think he is at a location we try to get there at a point of time when things are quiet, and he might be asleep and chances of escape would be less. It is the best opportunity to find a person at the place if he is going to be there." Other Officers also pointed out that there is less danger to the public since the streets are usually deserted and that the danger to the Officer himself is less and the surprise to the subject is the highest.

Sergeant Crooke dispatched Detective Norman and two Officers to the 2621 Douglas Street, S.E., address and he, himself, took three Officers to Apartment 907 at 1239 Vermont Avenue, N.W. Detective Norman found no evidence of Brown at the Southeast address. Sergeant Crooke, with his detail, arrived at Apartment 907 at 5:20 a. m. They knocked on the door of the apartment and a female voice inquired who was at the door. Detective Alexander identified himself as a police officer. The female voice replied, "Wait, I am getting dressed." The Officers waited two or three minutes and knocked once again. Sergeant Crooke said, "Open up, we have a warrant for Rabbit." The female voice asked, "Who?", and Sergeant Crooke replied "Roland Brown." The female voice again asked the police to wait. The Officers waited for another two or three minutes and Sergeant Klopfer pounded loudly on the door and said that if it was not opened it would be forced. During the period while they were waiting Miss Frazier estimated it as 10 minutes the toilet was heard flushing twice from inside the apartment. Finally at about 5:30 a. m. the door was opened by Miss Frazier. Sergeant Crooke displayed his identification folder as he and Detective Alexander entered. A man subsequently identified as Albert Westbrook was sitting in a chair; Brown was partly hidden behind the window draperies.² Detective Alexander called out to him, "Hold it, Rabbit." Brown quickly ducked out the window and Detective Alexander observed him as he descended from a railing outside the apartment window to the floor below. Brown made his escape through the lower apartment. Three of the Officers ran below in an effort to intercept Brown while Sergeant Crooke remained in the apartment with Miss Frazier and Westbrook. Detectives Alexander and Klopfer returned in a few minutes, unsuccessful in their pursuit. Since Brown was known to be both dangerous and usually armed, Detective Alexander was interested if he left his arms behind in his flight and so he looked under the two pillows on the bed. A .25 caliber automatic pistol was under one of the pillows....