United States v. Whiting

• Decision Date: 19 December 1962
• Docket Number: No. 8646.,8646.
• Citation: 311 F.2d 191
• Parties: UNITED STATES of America, Appellee, v. Orion T. WHITING, Jr., and Lucretia Killings, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

311 F.2d 191 (1962)

UNITED STATES of America, Appellee, v. Orion T. WHITING, Jr., and Lucretia Killings, Appellants.

No. 8646.

United States Court of Appeals Fourth Circuit.

Argued October 1, 1962.

Decided December 19, 1962.

Certiorari Denied March 4, 1963.

COPYRIGHT MATERIAL OMITTED

T. Emmett McKenzie, Washington, D. C., for appellants.

J. Hardin Marion, Asst. U. S. Atty. (Joseph D. Tydings, U. S. Atty., and Arthur G. Murphy, Asst. U. S. Atty., on brief), for appellee.

Before SOPER and BRYAN, Circuit Judges, and HUTCHESON, District Judge.

Certiorari Denied March 4, 1963. See 83 S.Ct. 882.

SOPER, Circuit Judge.

Orion T. Whiting, Jr., and Lucretia M. Killings appeal from judgments of the District Court based upon a jury verdict whereby they were found guilty of receiving wagers in a lottery operation without having previously paid the special occupational tax and without having registered and furnished information with regard to the business as required by the federal statutes and regulations. (See 26 U.S.C. §§ 4401, 4411, 4412, 4901, 7203, 7262, and 7272. C.F.R. Title 26 § 325.50) Whiting was sentenced to imprisonment for one year and fined $10,000 and Killings was sentenced to imprisonment for 181 days and fined $1,000. The questions in issue relate to the validity and the execution of a search warrant, to the refusal of the Judge to order the disclosure of the names of the informers and to certain rulings on the admissibility of evidence, and to statements contained in the charge of the Judge to the jury.

A variety of circumstances led to the arrest of the defendants, the search of the defendants' premises and ultimately their conviction. Some time prior to June 1, 1960 agents of the Intelligence Division of the Internal Revenue Service received information from sources that had proved reliable in the past that Whiting and other persons were engaged in the operation of a lottery and that numbers slips regarding the daily wagers were being transported by automobile to a house on Leland Road in Prince George's County, Maryland. Accordingly, two special agents, Bedingfield and Ridolfi, were assigned to investigate. They had been informed by sources previously found reliable that Whiting had a reputation in Washington, D. C. as a numbers backer and that he had admitted to Internal Revenue Agents that he was engaged in a lottery. The agents knew that in November 1951 Whiting had paid a 10% excise tax on wagers accepted by him in that month, in conformity with 26 U.S.C. § 4401, and that at one time he had applied for a special occupational wagering tax stamp under 26 U.S.C. § 4411, but no stamp had been issued because of failure on his part to furnish the required information.

Accordingly, the agents kept watch on Whiting's movements on six days between June 1 and June 20, 1960. They observed that shortly before 3:00 P.M., on each of these days, Whiting would pick up his co-defendant, Killings, in his automobile at 14th Street and Saratoga Avenue in the city of Washington, and drive to a shopping center in Prince George's County where they would await the arrival of one C. J. Wilson, a convicted gambler, who would arrive about 3:30 P.M., in another automobile with a colored girl, and park at the shopping center about a block away from Whiting's automobile. The girl would then leave the Wilson car carrying a large brown paper bag folded at the top and walk to Whiting's car and enter it. Whiting would then drive to a point one block away from the Center, let the girl out, drive away with the bag to a two-story house on Leland Road and drive into the garage in the basement. Whiting and Killings would remain inside the house for approximately an hour and then leave. The agents knew that Killings previously had been arrested for operating a lottery and that neither Whiting nor Killings nor Wilson had paid the special occupational wagering tax for the current fiscal year.

Armed with this information, the agents applied to the U. S. Commissioner for a search warrant to search the Leland Road house. They made an affidavit in which they set out the information they had received and the observations they had made; the Commissioner, being of the opinion that probable cause had been shown, issued the warrant on June 22.

On the afternoon of June 24 Agent Ridolfi watched while Whiting and Killings, following their usual routine, received a brown paper bag from Wilson and the colored girl and then drove to the house on Leland Road about 4:00 P.M. The search warrant was served shortly thereafter by two deputy marshals and six revenue agents. Several of the federal officers forcibly entered the house after they had disclosed their identity and had been refused admission. In a room on the second floor, they found numbers slips for June 24 spread out on the table and numbers slips for June 21, 22 and 23 in large brown paper bags and, in addition, adding machines and various items of gambling paraphernalia of the type normally used in numbers operations. The records disclosed a business of $2,000 a day with 65 writers and six to eight control men, to whom the writers report, engaged in the operation. The evidence indicated that in the lottery business the control men turn over the material to a pick up man, who delivers it to the banker.

The defendants endeavored unsuccessfully to suppress the evidence secured in the search by motions addressed first to the United States Commissioner at the preliminary hearing, and later to the District Judge in advance of the trial. Their contention is that these motions should have been granted because the search warrant was issued without probable cause. They rely on Schencks v. United States, 55 App.D.C. 84, 2 F.2d 185 (1924), where it was said that an officer of the law may not use information furnished him as a basis for a search and seizure, and should not act until he has secured the affidavit of his informer to the truth of the information, to be obtained if necessary, by subpoena to appear before the Judge or the Commissioner. This is no longer the prevailing rule either in the District of Columbia or elsewhere. It is now established that probable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, are sufficient in themselves to warrant the belief of a man of reasonable caution that a crime is being committed. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879; Washington v. United States, 92 U.S.App.D.C. 31, 202 F.2d 214, 215. Obviously, the information received by the agents in the instant case from previously reliable sources, supplemented by the knowledge acquired by the agents in their surveillance of the defendants' actions, furnished a sufficient basis for the finding of the Commissioner that there was probable cause for the issuance of a search warrant and also for the rejection by the court of the motion to suppress the evidence secured by the search.

The defendants further contend that the search warrant was illegally executed and, hence, the evidence obtained by the search should not have been admitted. The evidence on this point is not in dispute. The officers arrived at the house about 4:30 P.M. on June 24th. A Deputy Marshal knocked on the front screen door, which was locked, and announced in a loud voice that he was a United States Marshal with a search warrant. The wooden door was open and through the screen the Marshal could see persons scurrying around at the top of the steps leading to the second floor. He called to them to come down and open the door, but nobody came. After waiting about a minute, he broke through the screen near the lock, reached in and unlatched the door and entered. At the time one Mary Proctor, the wife of the owner of the house from whom the defendants rented one room, was seated with her daughter-in-law on a screened porch at the side of the house. One of the officers who had a gun sticking out of his belt covered this entrance and told Mrs. Proctor not to move when she started to get up after hearing someone knock at the front door. Her daughter-in-law told her to sit down, and she did so. The door to the side porch and to the house were not locked.

Defendants argue that if the officer had allowed Mrs. Proctor to go to the front door when she heard the knock, she would have opened the door, and the need to use force would have been obviated. The relevant statutes are 18 U.S.C. §§ 3109 and 2234. Section 3109 provides that an officer armed with a search warrant may break open any outer door of a house to execute the warrant if after notice of his authority and purpose he is refused admittance.

Section 2234 provides that whoever in executing a search warrant wilfully exceeds his authority or exercises it with undue severity shall be fined not more than $1000 or imprisoned not more than a year. Defendants contend that the Federal agents used undue violence in breaking open the screen door at the front of the house and, hence, the search was illegal. We do not think that the Deputy Marshal went beyond the permission of the statute. He had identified himself and had given notice of his authority to enter and had been denied admittance; and he had no notice that anyone inside the house was willing to open the door. Under these circumstances his use of only so much force as was needed to effect an entrance was not unreasonable.^*

On several occasions during the preliminary proceedings and in the trial before the jury, the defendants sought unsuccessfully to compel the Government to disclose the names of the informers whose information led to the investigation. Their attorney stated that he did not need the names of the informers in order to present an affirmative defense but in order to show that the information did not contain sufficient "actual representation" to justify the issuance of the search warrant. We think there...