United States v. Robinson

• Decision Date: 30 June 1971
• Docket Number: No. 23734.,23734.
• Citation: 447 F.2d 1215,145 US App. DC 46
• Parties: UNITED STATES of America v. Willie ROBINSON, Jr., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

145 US App. DC 46, 447 F.2d 1215 (1971)

UNITED STATES of America v. Willie ROBINSON, Jr., Appellant.

No. 23734.

United States Court of Appeals, District of Columbia Circuit.

Argued February 26, 1971.

Decided June 30, 1971.

Mr. Joseph V. Gartlan, Jr., Washington, D. C. (appointed by this court) with whom Mr. John K. Crummey, Washington, D. C., was on the brief, for appellant.

Mr. Henry F. Greene, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellee. Mr. Earl J. Silbert, Asst. U. S. Atty., also entered an appearance for appellee.

Mr. Scott R. Schoenfeld Washington, D. C., filed a brief on behalf of Americans for Effective Law Enforcement, Inc., as amicus curiae.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

Argued En Banc February 26, 1971.

ON REHEARING EN BANC

McGOWAN, Circuit Judge:

This appeal from a jury conviction for federal narcotics offenses (26 U.S.C. § 4704(a) and 21 U.S.C. § 174) raises questions under the Fourth Amendment, as difficult as they are important, of the permissible scope of the search of the person incident to a lawful arrest. Heard and decided initially by a division of this court on a ground not raised in the trial court, the case was reheard en banc. Hampered by the fact that the taking of evidence in the District Court was not focused upon the scope issue first raised here, we have concluded that the resolution of that issue must abide a remand in which that can be done. We address ourselves initially, however, to two questions, raised in both the District Court and here, which were pretermitted by the division. Finding against appellant on the merits of both, the remand we make is in order.

I

A pretrial motion to suppress evidence, in the form of narcotics taken from the possession of appellant at the time of his arrest, was the subject of an evidentiary hearing out of the presence of the jury. In that hearing Officer Jenks of the Metropolitan Police Department testified that at 12:45 A.M. on April 19, 1968, he stopped a 1965 Cadillac at 9th and U Streets, N. W., for what he described as a "routine spot check." Appellant, the driver of the Cadillac, was asked to exhibit his driver's permit and the vehicle registration. Appellant, according to Jenks, handed over a temporary driver's permit, the registration, and a selective service classification card. Officer Jenks made notes of the first and third of these items, remarking in the process a discrepancy in the birth dates on each, that on the driver's permit being 1938 and, on the draft card, 1927. Appellant was then permitted to go on his way. Officer Jenks later checked traffic records and discovered that appellant's driver's license had been revoked, and that the temporary permit had been issued in response to an application which represented the date of birth to be 1938.

Four days later, on April 23, Officer Jenks again encountered appellant, operating the same Cadillac. Officer Jenks stopped him with, as he put it, "the intention of arresting appellant for operating after revocation and obtaining a permit by misrepresentation." When appellant produced the same temporary permit as before, he was told that "he was under arrest for operating after revocation." Officer Jenks then testified:

"I advised him of his rights, and searched him immediately in front of me. I noticed in his left coat pocket — breast pocket of his coat, a wadded up package — cigarette package. I opened it. Inside was found 14 gelatin capsules."

After first identifying the cigarette package with the 14 capsules in it as the property taken by him from appellant, Officer Jenks concluded his direct testimony with an account of what he did with the capsules after their seizure. He placed his initials on the package, together with the date and time. The next morning he turned it over to Officer Gorney of the Narcotics Squad, having kept it in his locker in the interim, to which locker he had the only key. Officer Gorney made a field test in his presence, and then placed the cigarette package in a cream-colored envelope which he sealed with scotch tape, placing his initials and the date and time on that envelope, as did also Officer Jenks. Officer Jenks then observed Officer Gorney proceeding with his paper work, which included writing on what is known as a locked sealed envelope.

Officer Jenks was cross-examined briefly on (1) the turning over of the draft card by appellant during the original stop, and (2) Jenks' subsequent examination of the traffic records. Mrs. Ewing, an enforcement clerk in the Department of Motor Vehicles, then testified, without cross-examination, as to what the records of the Department showed. The third witness was Mr. Steele, a Government chemist. He testified that he received a locked sealed envelope from Officer Gorney on April 29, 1968. He put his initials and Gorney's name on the outside, and also a laboratory control number. The envelope was sealed and intact upon its receipt by him, and there was no indication that it had been tampered with. Upon opening in the laboratory, a smaller envelope sealed with scotch tape was found inside; and inside that was a cigarette package containing 14 capsules. Gorney's and Jenks' initials were in the places testified to by them. The capsules, on being chemically analyzed, were found to contain heroin. They remained in the laboratory vault until brought by Steele to the courtroom. Steele's brief cross-examination was largely confined to signs of tampering, but his answers were as on direct.

Appellant took the stand and testified on direct examination only that, during the original stop, Jenks had asked to see his draft card after he had produced his driver's permit and the vehicle registration. He admitted on cross-examination that he had misrepresented his age in seeking the second driver's permit.

With the taking of evidence so completed on the motion to suppress, appellant's trial counsel asserted two reasons why the motion should be granted. One was that the purposes of the routine spot check had been exhausted when appellant exhibited to Officer Jenks his driver's permit and registration, and that Jenks had no right to require appellant to exhibit his draft card. It was urged that, since it was the age discrepancy revealed by the draft card which aroused Jenks' suspicions, everything that followed, including the discovery of the narcotics on the occasion of the later arrest, was the forbidden fruit of this initial illegal action. The second point advanced in support of the motion was that the evidence revealed no unbroken chain of custody of the seized narcotics reasonably assuring that the capsules introduced into evidence were the same as those which Jenks said he took from the possession of appellant. At the conclusion of arguments by counsel on the merits of these two claims, the court, without elaboration, denied the motion.

At the succeeding trial before the jury, it was stipulated that (1) the capsules in evidence allegedly taken from appellant did in fact contain heroin, and (2) their chain of custody was from Officer Jenks to Officer Gorney to Mr. Steele to the courtroom. Officer Jenks was the only witness for the prosecution and testified on direct essentially as he had on the motion to suppress.¹ He was cross-examined only briefly, and there were no questions relating to the search except one which asked whether appellant had his coat on when he got one of the car, to which the answer was in the affirmative.

The first witness for the defense was one Smallwood, who testified that he was in the car with appellant when the latter was stopped the second time. When appellant got out of the car and walked back to meet Officer Jenks, said Smallwood, appellant did not have his coat on; it was, instead, lying in the back seat of the car. Smallwood had left the immediate vicinity of the car when the narcotics were discovered, although he later observed the police searching the car. The police did not search him or the third occupant of the car when it was stopped.

Appellant testified that, after he got out of the car and was told that he was under arrest for misrepresentation, Officer Jenks went over to the car to get the keys. He picked up appellant's coat in the car and searched it. Finding the narcotics, he announced to appellant that he was under arrest for a narcotics violation. Appellant said that he had allowed his coat to be worn by someone else that day, and that he himself had never placed narcotics in it. On rebuttal, Officer Jenks testified as follows:

"Q. Officer Jenks, where did you get the jacket from or where did you find the narcotics?

"A. In his left breast pocket like my jacket right here — like the jacket I have on.

"Q. Where was the jacket when you recovered the narcotics?

"A. He was wearing it."

In a colloquy with the court pertaining to the instructions to be given, the theory of the defense made before the jury appears clearly in this exchange:

"THE COURT: As I understand, you do not deny the narcotics drug was found by the arresting officer that night or that it was found in a coat, but your position being that the coat was out of the possession of the defendant for a period of hours on the 23 of April, and when it was returned, it was thrown by this friend, Shorty, in the back seat of the car, and not worn by the defendant, and the Officer found the drug in the coat that had been lent to Shorty. Is that your position?

"DEFENSE COUNSEL Yes, your Honor."

II

On appeal to this court, three points were raised by appointed counsel, who had not represented appellant in the District Court. One was a claim that the District Court erred in denying appellant's pretrial motion, made pro se, to dismiss the indictment for want of the speedy trial required by the...