United States v. Harris, No. 22742.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: TAMM, MacKINNON and WILKEY, Circuit
• Citation: 435 F.2d 74,140 US App. DC 270
• Parties: UNITED STATES of America, v. Thomas D. HARRIS, Appellant.
• Docket Number: No. 22742.
• Decision Date: 12 August 1970

140 US App. DC 270, 435 F.2d 74 (1970)

UNITED STATES of America,
v.
Thomas D. HARRIS, Appellant.

No. 22742.

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 1970.

Decided August 12, 1970.

Petition for Rehearing Denied September 22, 1970.

435 F.2d 75

COPYRIGHT MATERIAL OMITTED

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Mr. Richard A. Merrill, Washington, D. C. (appointed by this Court), for appellant

Mr. Gregory C. Brady, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Mr. David G. Bress, U. S. Atty., at the time the record was filed, also entered an appearance for appellee.

Before TAMM, MacKINNON and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

Appellant and two others (Henson and Jordan) were convicted of armed robbery, and assault with a dangerous weapon, the conviction of appellant Harris resulting in a sentence of 7 years under the Youth Corrections Act.¹ Appellant raises questions, first, in regard to the search of his apartment and seizure of evidence therein, and second, as to the sufficiency of the evidence. We find that the seized evidence was properly admitted, and that this along with other evidence in the case was sufficient for the jury to find appellant guilty as charged.

I. Pertinent Evidence

A. Events Leading Up to the Entry into Appellant's Apartment

In the afternoon of 24 May 1968 the Merkle Press, Inc., was robbed by three armed men as two employees were delivering the weekly payroll to the Merkle shipping department. One of the employees were wounded. In the routine handling of the Merkle payroll every Friday around 3 o'clock cash was delivered by an armored car to the central payroll department, from which at a definite time pay envelopes were

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handcarried to the other buildings of the Merkle Press. With the exception of the exact route followed by the pickup men, varied slightly each Friday, the timing and the routine of paying in cash between 3:00 and 4:00 was precisely the same, and would be known to any employee or ex-employee of Merkle Press. On the afternoon after the robbery, since the shipping department employees had not been paid, the paymaster issued checks to all employees at about 4:15 p. m. Appellant Harris, although he checked out at 4:30 p. m., was the only employee who departed that day without picking up his check

Eyewitnesses described the three robbers and identified their get-away car by license number and description as a maroon Chevy II Nova. A quick record check showed the license tag to be registered to a different car, a 1957 Ford owned by one William Harris, living on Anacostia Avenue, S. E. By sheer chance a police officer remembered that he had recently given a traffic ticket to a Thomas Harris (the appellant herein) driving a maroon Chevy II Nova, and in checking his records discovered that the address Thomas Harris had given was 3535 J Street, N.E. Police cruisers immediately went to both Anacostia Avenue, S.E. and J Street, N.E. to look for the reported getaway car. One police cruiser spotted a Chevy II Nova, later determined to be owned by appellant Thomas Harris, in a parking lot near 3535 J Street. The engine was still warm, the license plates were missing, but license plate bolts were lying on the ground beneath the rear bumper. By this time the officers had also ascertained that the Merkle Press shipping department had an employee named Harris.

Upon receiving the report of the discovery of the car, Sgt. Arscott, Sgt. Blake, and two other police officers drove to 3535 J Street, N.E. While about one block away Sgt. Arscott observed one Jordan (later named as defendant and convicted herein) and an unidentified young man. Recognizing Sgt. Arscott, Jordan fled into a nearby apartment. After inspection of the Chevy II Nova the four officers then proceeded to appellant Thomas Harris' apartment to continue their investigation. With prudence inspired by their knowledge that an armed robbery had just been committed and one employee wounded, Sgt. Blake carried a shotgun in plain view.

When Sgt. Arscott knocked on Harris' apartment door, a voice from inside inquired "Who is it?" The Sgt. replied "Police." Immediately the officers heard footsteps and considerable movement from inside the apartment as if furniture were being shifted. After a one and a half minute interval Sgt. Arscott repeated the announcement that they were police officers and told those inside to open the door. One Henson (also defendant and convicted herein) then opened the door. With Henson was a juvenile, but neither appellant Harris nor Jordan.

Henson and the juvenile were well and unfavorably known to Sgt. Blake from prior encounters, resulting in their arrests for housebreaking, auto theft, and other offenses. Henson resembled the general description given of one of the three robbers. Most significantly, however, as they stood at the threshold of the apartment the officers saw through the open door large stacks of coins on the dining room table, a sight which aroused the logical suspicion that these stacks of coins were part of the stolen payroll.

B. Entry, Search and Seizure

Following this rapid-fire sequence of events, the officers entered the apartment "almost instantly" after the door opened. Sgt. Arscott's testimony was that he was not certain whether Henson let him into the apartment or if he asked if he could enter, but that, Henson stepped back as he opened the door, allowing the officers to enter. On inquiry Henson explained that the coins had been saved by a sister, cousin, or girl-friend. While Sgt. Arscott went downstairs to call to ascertain the exact content

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of the payroll, the other officers walked around the living-dining room, but did not enter other rooms of the apartment. One detective observed through the open door of the living room closet a pistol butt protruding from a box on the top shelf. After being shown this, Sgt. Arscott removed the box from the shelf, and in so doing discovered two other pistols and a shoulder holster in the box. The three pistols matched the description of the weapons used in the robbery that afternoon. One pistol was found to have been purchased by appellant Thomas Harris eight months before. Ballistics tests proved this the gun which had fired the shot wounding the Merkle employee

After the discovery of the pistols Henson and the juvenile were formally advised that they were under arrest. Sgt. Arscott then went into the bedroom, pulled back the mattress, and uncovered approximately $5,000.00. Appellant Harris was subsequently arrested elsewhere.

II. Motion to Suppress the Evidence Found in the Apartment

A. Probable Cause to Arrest — Entry without Warrant

Appellant argues² that the evidence obtained from his apartment should have been suppressed because the police entry and arrest of co-defendant Henson was unlawful, and therefore the search which followed the entry and arrest was an illegal search. To evaluate this argument we now consider the situation as known to the police officers as they stood in the hallway outside the threshold of appellant Harris' apartment just prior to entry:³

1. The armed robbers had fled in a maroon Chevy II Nova, bearing license plates registered to a Ford owned by one William Harris;

2. Another Harris, i. e., appellant Thomas Harris, bearing the same last name as the man to whom the license plates were registered, owned a maroon Chevy II Nova;

3. A Chevy II Nova, a car answering the description of the get-away vehicle, with the engine and exhaust still warm, bearing no license plates, and with the bolts for the license plates lying on the ground under the rear bumper, was parked near the address of appellant Thomas Harris;

4. A person named Harris worked for the Merkle Press which had been robbed an hour before;

5. Part of the money taken in the robbery consisted of coins;

6. When the four policemen knocked at the door of Harris' apartment and identified themselves, the occupants within were slow in answering and sounds of movement of people and furniture were heard;

7. The individual Henson answering the door fit roughly the description of one of the robbers;

8. One of the police officers not only recognized Henson, but knew that he had been involved in prior offenses of housebreaking and auto theft; and

9. Simultaneously with the opening of the door, but before they crossed the

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threshold, the police officers saw stacks of coins in various denominations on the dining room table within

On the knowledge the officers had before coming to appellant Harris' apartment (items 1-5 above), they had no probable cause to secure a warrant for anyone's arrest. Although they had been led to appellant Harris' apartment by the fortunate recollection of a recent traffic arrest plus the description of Harris' automobile matching that of the get-away car, Harris himself was an employee of the Merkle Press and had certainly not been identified as one of the three robbers. Until the officers saw Jordan prior to entering the building and saw Henson in the apartment, they had no suspicion that either of them was involved in the robbery.

In Dorman v. United States, 140 U.S.App.D.C. ___, 435 F.2d 385, decided April 15, 1970, this court en banc decided the question of "whether the general requirement of a warrant as a condition for entry into a house is subject to an exception where the entry is for the purpose of making an arrest of a suspected felon."⁴ In so doing, we said: "the basic principle, the constitutional safeguard that, with room for exceptions, assures citizens the privacy and security of their homes unless a judicial officer determines it must be overridden, is applicable not only in case of entry to search for property, but also in case of entry in order to arrest a suspect."⁵ But further, this "room for exceptions" includes the situation where "the...