United States v. Oliver, 6440.
Citation | 297 A.2d 778 |
Decision Date | 29 November 1972 |
Docket Number | No. 6440.,6440. |
Parties | UNITED STATES, Appellant, v. Suedell P. OLIVER, Appellee. |
Court | Court of Appeals of Columbia District |
Robert E. L. Eaton, Jr., Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, James A. Adams, and Roger C. Spaeder, Asst. U. S. Attys., were on the brief, for appellant.
Before KELLY, KERN and NEBEKER, Associate Judges.
This appeal by the Government1 is from an order suppressing implements of crime (D.C.Code 1967, § 22-3601) and a narcotic drug (D.C.Code 1967, § 33-402). After granting the pretrial motion to suppress (the issue to be discussed last), the trial court denied the Government's request for a continuance to permit an appeal from the suppression order, and sua sponte dismissed the information for want of prosecution. We are asked to reverse both the dismissal and the suppression orders; and we do.
Appellee seeks to sustain the dismissal order as a reasonable exercise of discretion since the prosecution did not comply with Superior Court Criminal Rule 111(b)(1), and (c). Those provisions respectively require a written motion for a continuance, service on the opposite party, a hearing — if contested, and a request for continuance at least two days before trial. The trial had earlier been set for April 12, 1972, and the hearing on the motion to suppress for April 6, 1972. The order of suppression was entered on April 6, 1972, and the continuance request was orally made on April 12.
The infirmity in appellee's position is that a dismissal under these circumstances cannot be entered thus to defeat the jurisdiction of this court on a timely appeal taken pursuant to D.C.Code 1967, § 23-104(a)(1) (Supp. V, 1972). It is to be noted that the suppression order, if lawful, effectively terminated the prosecution. United States v. Cefaratti, 91 U.S.App.D. C. 297, 301, 202 F.2d 13, 17 (1952). Thus, the trial date of April 12 became academic. It is inescapable that a trial continuance is necessary if a section 23-104 appeal is to be taken. Accordingly, during the time when an appeal may be noted the requirements of Rule 111 become subordinate to the statutory right to appeal under § 23-104.
Moreover, and more in point to this case, the basis for the dismissal was an erroneous view of the law respecting bail in cases of such government appeals,2 and reveals a continuing misunderstanding of prosecutorial authority.3 In what appears to be a rather unwarranted, if not heated, exchange with the prosecutor, the following was said:
From the foregoing excerpts of the transcript it is clear that the underlying rationale for the dismissal was (1) an erroneous belief that appellee would be incarcerated because of the appeal (see footnote 2, supra); and (2) a preoccupying disagreement with the Government's announced determination to proceed with the appeal.4
Accordingly, we hold that the order of dismissal was without authority and void. It will be set aside and the information reinstated. Should the case go to trial it will obviously have to be before another judge.
The facts surrounding the suppression order reveal clear error and require reversal. The arresting officer was on the street investigating a robbery. He saw a crowd of "girls" standing on a street corner. One lady approached the officer and said that a house had just been burglarized. The officer called for a scout car to continue the robbery investigation while he investigated the burglary. Someone accused appellee of that offense, which amounted to taking a television set. Appellee denied the accusation but furnished her name and address. She was then told she could go on her way. While talking to the owner of the television set, another lady whom the officer had known well for about two years approached him and asked why appellee had been permitted to leave. When the officer said he "had nothing to hold her for", the lady said, "Would you like something on her?" The officer responded, "If she's illegal, yes." The lady said, "Well, she's carrying the `works' underneath her wig." When asked if she was sure about it, she answered in the affirmative.
The officer called for another scout car, which took him to where he had seen appellee walk — a distance of three blocks. He stopped her and asked if she was wearing a wig. When told "no", he said, "Could you pull off your hat, please?" She started to remove her hat and the wig began to slide off at the same time. At this point appellee slipped her left hand under the wig and pulled something out. When asked what it was she said, "Nothing." The officer grabbed her hand, opened it, and recovered a syringe, a needle and a string, plus a bag containing methadone. Later at the police station, appellee began to eat starch from a box. Such strange behavior prompted an investigation of the contents of the box, which revealed a piece of tinfoil apparently containing heroin.
The basis given for the ruling on the suppression motion was: In an unnecessary, vain, and somewhat argumentative tone, the court went on:
D.C.Code 1967, § 23-581 (Supp. V, 1972), permits an arrest without a warrant if the officer "has probable cause to believe [a person] has committed or is committing an offense in his presence." The reasoning of the...
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In re I.J., 03-FS-671.
...the indictment had been dismissed "the government proposes to seek a new indictment, ... and the case is not moot"); United States v. Oliver, 297 A.2d 778, 780 (D.C.1972). The charges against appellee are subject to a three-year statute of limitations, see D.C.Code § 23-113, and therefore t......
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In re IJ
...indictment had been dismissed "the government proposes to seek a new indictment, . . . and the case is not moot"); United States v. Oliver, 297 A.2d 778, 780 (D.C.1972). The charges against appellee are subject to a three-year statute of limitations, see D.C.Code § 23-113, and therefore the......
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United States v. Engram
...the prosecution" as did the orders in District of Columbia v. M. E. H., D.C.App., 312 A.2d 561 (1973), and United States v. Oliver, D.C.App., 297 A.2d 778, 780 (1972). We hold, therefore, that the May 22, 1974, order was appealable under D.C.Code 1973, § 23-104(a) Appellees made at oral arg......
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United States v. Cummings, 6422.
...to decide. We have said this often enough that it should be unnecessary to do so again. United States v. Mack, supra; United States v. Oliver, D.C.App., 297 A.2d 778 (1972); Brandon v. United States, D.C. App., 239 A.2d 159 (1968). See also Newman v. United States, 127 U.S.App.D.C. 263, 264......