United States v. McKinney, 17103.

• Decision Date: 26 June 1967
• Docket Number: No. 17103.,17103.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy McKINNEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

379 F.2d 259 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Roy McKINNEY, Defendant-Appellant.

No. 17103.

United States Court of Appeals Sixth Circuit.

June 26, 1967.

Burt W. Griffin, Cleveland, Ohio (Court-appointed), for appellant.

James L. Oakar, Asst. U. S. Atty., Cleveland, Ohio (Merle M. McCurdy, U. S. Atty., Cleveland, Ohio, on the brief), for appellee.

Before WEICK, Chief Judge, and O'SULLIVAN and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This is an appeal from a conviction for aiding and abetting the harboring of a fugitive and for conspiring to harbor a fugitive in violation of 18 U.S.C. §§ 2, 371, 1071.

The fugitive, Louis Edward Baker, was sought for the robbery of an Indiana bank, and a federal warrant had been issued for his arrest on July 21, 1964. Investigation by the F.B.I. indicated that Baker was in Cleveland during July, 1964, and had rented an apartment on St. Clair Avenue. A search of this apartment, pursuant to a search warrant, did not reveal the presence of Baker, but did disclose a distinctive bar, which was later found in co-defendant Ella Mae Snyder's apartment, where Baker was ultimately apprehended.

Appellant and Baker traveled together to Boston, Massachusetts in July, where they stayed with Prentice Fitzpatrick, who later drove Baker back to Cleveland. Fitzpatrick and Janet Lothery, an acquaintance of appellant's, testified at the trial that Baker spent some time in or around the Snyder apartment after his return to Cleveland. This information had been communicated to the F.B.I. by Fitzpatrick and Lothery and, on August 5, 1964, three F.B.I. agents went to the apartment. They informed Ella Mae Snyder that Baker was wanted for robbery and that it was a federal offense to harbor a fugitive, and, without a search warrant, unsuccessfully searched the apartment for Baker. On August 12, appellant was stopped by the F.B.I. in the vicinity of the apartment and was informed that Baker was wanted and that harboring was an offense.

At about noon on September 8, 1964, F.B.I. agent Burke received information, the source and nature of which was undisclosed at either a pretrial hearing or the trial itself, that Baker was then at the Snyder apartment. Later that afternoon, Burke and six other agents drove to the area of the apartment. Two agents were assigned to approach the apartment from the rear. Burke and two others approached from the front. Appellant came down the front stairs and, upon being questioned, either denied the presence of Baker in the apartment (Burke's version of the conversation) or denied knowledge of Baker's presence (appellant's version). Upon further questioning, appellant admitted that Baker was in the apartment. While this questioning was in progress, the two agents who had approached from the rear entered the apartment after informing Ella Mae Snyder that they were seeking Baker. One of these agents discovered Baker hiding in a closet, while the other opened the front door to admit the remaining agents.

Burke testified at the trial that after Baker had been found, he questioned Snyder in appellant's presence. He said:

I asked Ella Mae Snyder why she did not tell me why Baker was in the apartment, that Louis Edward Baker was in the apartment, and she stated that she knew this man as Johnny Baker, referring to the man that we had apprehended in the closet.

She stated that Johnny Baker had come to her residence several days earlier after she had received a telephone call from Roy McKinney indicating that he wanted a friend of his to stay at her home, and that they would pay her $20.

It appears from the record that appellant did not contemporaneously deny Snyder's allegations.

Appellant bases his appeal on these grounds, all of which were properly preserved for our consideration: (1) evidence obtained as a result of the September 8 search of the Snyder apartment, including the fact of Baker's presence, should not have been admitted because the search violated the Fourth Amendment; (2) appellant's September 8 statement to agent Burke concerning Baker's whereabouts should not have been admitted because it was obtained in violation of his Fifth Amendment rights; (3) agent Burke's testimony concerning the statement made by Snyder in appellant's presence should not have been admitted because its admission violated appellant's Fifth Amendment rights, and (4) the trial court should have ordered that appellant and his co-defendant Snyder be tried separately.

Appellee concedes, in its brief, that with regard to ground (3), Burke's testimony "was properly received only against co-defendant Ella Mae Synder," and that the trial court made clear in its instructions that it could not be used against appellant. While we agree that the testimony was admissible against Snyder, we do not agree that the instructions so limited the use of the testimony, and we therefore hold that appellant's conviction must be reversed because of the highly prejudicial character of this testimony.

It seems clear that the theory on which the trial court admitted Burke's testimony concerning Snyder's accusations was that appellant's silence, in the face of these accusations, constituted his admission of their truth. The court said at the time of Burke's testimony:

As I understand it, he is talking to Ella Mae Snyder at this time, and the only matter before the Court is to determine whether or not Roy McKinney was able to hear the conversation, and that is what I am trying to determine, if he could hear the conversation, and if anything was said which might affect Roy McKinney. * * * If it develops he could hear and was paying attention, then of course the court will rule one way. If it develops he could not hear, the Court will rule another. * * *

Snyder's statements, then, were not objectionable as hearsay, since they were not technically introduced to prove their own truth; the probative element was supplied not by the statements themselves but by appellant's admission inferred from his silence. McCormick, Evidence § 247. The admission by silence, however, was made while appellant and Snyder were undergoing F.B.I. interrogation and at a time when they were obviously accused of having committed an offense. Permitting this admission to be received into evidence therefore contravened appellant's right under the Fifth Amendment to remain silent when in custody and accused of a crime. United States v. Pearson, 344 F.2d 430 (6th Cir. 1965); Ivey v. United States, 344 F.2d 770 (5th Cir. 1965). As this court noted in McCarthy v. United States, 25 F.2d 298 (6th Cir. 1928), if such admissions were properly received into evidence the traditional warning given to criminal suspects would have to be modified to advise: "If you say anything, it will be used against you; if you do not say anything, that will be used against you." 25 F.2d at 299.

The instruction which, according to appellee, limited Burke's testimony so that it could be used only against co-defendant Snyder, was the following:

I further instruct you that any conspiracy which may have been entered into terminates with the accomplishment or frustration of the object of the conspiracy. So in this case, any conspiracy which might have existed would have terminated with the arrest of Louis Edward Baker, and any statements or conduct of one defendant made or done thereafter would not be attributable to the other defendant.

Appellee's argument concerning the limiting effect of this instruction presupposes that the only ground on which the statements of one conspirator might be received against a co-conspirator is that these statements were made during the course of the conspiracy and in furtherance of it, and can therefore be regarded as vicarious admissions. The quoted instruction would then inform the jury that Snyder's statements could not be used against McKinney, since these statements were made after the purpose of the conspiracy had been frustrated. But, as we have already suggested, the theory on which Burke's testimony was admitted was that appellant's silence could be taken as an admission of the truth of Snyder's statements. Cf. Krulewitch v. United States, 366 U.S. 440, 442, 69 S.Ct. 716, 93 L.Ed. 790 (1949). The court in fact specifically instructed the jury that a statement made by one conspirator after the conspiracy had terminated "may not be considered as evidence against any person who was not present and heard the statement." (emphasis added) The instruction relied upon by appellee as limiting was therefore not intended to pertain to Burke's testimony at all, and could not have precluded the jury from considering this testimony in rendering its verdict against McKinney.

Although appellant's conviction must be reversed for the reason already considered, it will be useful to discuss appellant's other contentions because of the possibility that the same issues will arise should the government decide to proceed with a new trial.

It is appellant's contention with respect to the search of Ella Mae Snyder's apartment that, in the absence of exceptional circumstances, a search warrant must be obtained before entering the dwelling of a third party to execute a valid arrest warrant. Appellant relies principally on Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L. Ed. 436 (1947), which enunciated the rule that a search warrant must be obtained in the absence of exceptional circumstances, but did not involve the element of a valid arrest warrant. A contention identical to appellant's was advanced to the Court of Appeals for the Fourth Circuit in Lankford v. Gelston, 364 F.2d 197 (1966). The court, although ordering the entry of a decree

enjoining the Police Department of Baltimore from conducting a search of any private house to effect the arrest of any person not known to reside therein, whether with or without an arrest warrant, where the belief that the person is on the premises is based only on an

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