United States v. Gamble

• Decision Date: 12 February 1973
• Docket Number: No. 72-1397.,72-1397.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecil GAMBLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

473 F.2d 1274 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Cecil GAMBLE, Defendant-Appellant.

No. 72-1397.

United States Court of Appeals, Seventh Circuit.

Argued January 9, 1973.

Decided February 12, 1973.

Ronald Marich, Chicago Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., William T. Huyck, Richard F. Sprague, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, and KILEY and FAIRCHILD, Circuit Judges.

SWYGERT, Chief Judge.

Cecil Gamble, defendant-appellant, was convicted on an indictment charging him with possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). On appeal he contends that the firearm for the possession of which he was convicted was illegally seized during a police search in violation of the fourth amendment, and that the district court erred in denying his motion to suppress the evidentiary use of that item at his trial.

I

This case revolves around certain activity undertaken by the Police Department of Harvey, Illinois. On the night of February 7, 1970, Everett Davis appeared at the Harvey police station and complained that Gamble and two others, James Williams and Jerome Crowder, had abducted him at gun point and taken him to Gamble's home where they committed an aggravated battery and armed robbery. Williams and Crowder were immediately taken into custody. At the time Crowder was arrested, the police found and seized a weapon of the type which the complaining witness alleged had been used in the robbery.

Gamble was the next object of police attention. At about 12:30 in the morning of February 8, approximately seven officers proceeded to Gamble's residence for the purpose of securing his arrest.¹ They knocked on his door and received a response from a female voice inside, inquiring as to the identity of the knocker. After announcing their office and their intent to arrest Gamble, and upon hearing no reply but a "rustling" noise from behind the door, the officers broke down the door and entered with guns drawn.

Their initial entry carried them into the kitchen of Gamble's residence. To the officers' left was a doorway leading to a bedroom, to their right a blank kitchen wall. As they entered, Gamble and a woman were emerging from the bedroom; another woman was observed sitting at a table in the kitchen. Gamble was advised of his arrest, ordered to raise his hands, and was frisked after being placed against the kitchen wall opposite the bedroom entrance.

One of the arresting officers then walked to the bedroom door and looked inside. Observing a figure on a bed to his left, the officer turned on the room light and determined that an infant child was lying on the bed. The officer entered the room and walked to the bed to "see that the baby was all right." He was closely followed by a second officer, who, looking about the room, observed and seized the weapon upon which this prosecution was based. While this was going on, other officers of the arrest team were conducting a thorough search of the rest of the residence, despite the fact that they possessed only a warrant for Gamble's arrest, not a warrant to search his premises.

II

There is no principle more firmly rooted in our constitutional jurisprudence than that warrantless search is presumptively illegal. Only where the Government sustains a heavy burden of demonstrating that exigent circumstances rendered impossible the securing of a search warrant or conclusively proves that a knowing and voluntary consent to search was obtained may a warrantless search stand and the evidence therein seized be used at the trial of its owner. The Government does not seek to justify the instant search as one authorized by consent; its reliance, instead, is upon exigent circumstances it claims were present at the time Gamble's residence was searched. Police officers, it is argued, have the right to conduct a "protective sweep" of the residence in which an arrest occurs for the purpose of insuring their safety against attack from rooms beyond the site of arrest.

The issue, then, is one of the proper scope of search incident to an arrest. The same question was last before the United States Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The Court held:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer\'s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee\'s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. 395 U.S. at 762, 763, 89 S.Ct. at 2040.

In answer to the Government's contention that a search more extensive in scope was reasonable within the meaning of the fourth amendment, the Court ruled:

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The "adherence to judicial processes" mandated by the Fourth Amendment requires no less. 395 U.S. at 763, 89 S.Ct. at 2040.

In this case, we do not understand the Government to rely on any of the "well recognized exceptions" mentioned by the Court in Chimel. See, e. g., Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (consent); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (hot pursuit). We are thus invited to establish a new exception to the fourth amendment requirement of a warrant. We decline to do so.

This is not a case like United States v. Harris, 140 U.S.App.D.C. 270, 435 F.2d 74 (1970), where all three members of a robbery gang were at large, and police, finding two of the gang in an apartment, had reason to believe that the third was hiding elsewhere on the premises.² At the time of Gamble's arrest, both Williams and Crowder were safely in police custody. People v. Block, 6 Cal.3d 239, 103 Cal.Rptr. 281, 499 P.2d 961 (1971), and United States v. Broomfield, 336 F.Supp. 179 (E.D. Mich.1972), relied upon by the Government, are similarly distinguishable; in each case it was found that arresting officers had reason to believe that...