United States v. Wylie

• Citation: 462 F.2d 1178,149 US App. DC 283
• Decision Date: 29 March 1972
• Docket Number: No. 23072.,23072.
• Parties: UNITED STATES of America v. Robert S. WYLIE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

149 US App. DC 283, 462 F.2d 1178 (1972)

UNITED STATES of America v. Robert S. WYLIE, Appellant.

No. 23072.

United States Court of Appeals, District of Columbia Circuit.

Argued March 12, 1970.

Decided March 29, 1972.

Mr. Robert N. Hickey, Washington, D. C., with whom Mr. Dennis I. Meyer, Washington, D. C. (both appointed by this Court), was on the brief, for appellant.

Mr. Julius A. Johnson, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before TAMM, ROBINSON and MacKINNON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal, from a conviction of robbery,¹ challenges the validity of appellant's in-home arrest and the incidental seizure of evidence subsequently introduced at his trial. The evidence in question was money allegedly taken during the robbery and a shirt allegedly worn by the party who perpetrated it. Illegality of the seizure is urged on grounds that the arrest was unlawful for noncompliance with 18 U.S.C. § 3109,² and that the seizure followed a search too broad in scope to satisfy constitutional demands. Concluding that neither the arrest nor the search exceeded permissible bounds, either statutory or constitutional, we affirm the conviction.

I

About 4:45 on a May afternoon, Ethel D. Summers³ was attacked by a young man and robbed of her purse in the lobby of 1820 Clydesdale Place, Northwest, her apartment building.⁴ The man, whom Miss Summers had ample opportunity to scrutinize,⁵ wore a brown shirt, and the purse contained an envelope enclosing $85 in currency, including a one dollar bill bearing a distinctive red mark.⁶ After the misdeed, the robber made off and Miss Summers, in her words, "went behind him to see where he was going." Observing that he fled into 1860 Clydesdale Place, the adjacent apartment building, Miss Summers asked a friend to watch the front door to that building and hurried into her own building for help. Joe Taylor, Jr., informed of the incident, rushed to 1860 Clydesdale in search of the thief while another friend called the police.

Taylor reached the open rear exit from the basement of 1860 Clydesdale in time to see a man clad in a brown shirt scramble over the back fence and race through the abutting alley. Two police officers, Edward Dowling and Clark T. Smith, arrived on the scene, and were informed of what had transpired. All four then went to Ontario Place, the next street over, to look for the brown-shirted robber. After a brief stop at the home of the neighborhood newsboy,⁷ they came upon a witness on the sidewalk, Charlotte Filmore, who told them that "the man that I just seen running" who had "almost knocked me down" "ran in this house."⁸ The house to which Mrs. Filmore directed them was 1884 Ontario Place, appellant's residence, located about a block from the point at which the robbery occurred.⁹

To 1884 Ontario the foursome proceeded. Officer Dowling sought admittance at the front door while Officer Smith proceeded to the back door on a similar mission. The officer's shouts over a five-minute period failed to elicit a response at either door.¹⁰ Finally, Officer Smith entered the house through the closed but unlocked back door, opened the front door, and a floor-by-floor check of the interior was made.¹¹ Appellant was eventually detected in the attic, nude from the waist up and lying prone in a three-foot crawl space beneath the eaves of the roof, and was arrested immediately. In the crawl space beside appellant was a short-sleeved brown shirt. On top of a chest a short distance across the attic was a red cloth wrapped around a wallet containing $85, including a red-marked dollar bill.¹² Miss Summers unhesitatingly identified appellant as her assailant, the shirt as the one worn by him, and the red-marked bill as part of the $85 in her purse. By Officer Dowling's estimate, the elapsed time from offense to apprehension was about 15 minutes.

At trial, the Government fully established each of the foregoing events, and introduced the shirt and the money as part of its proof. Appellant presented no evidence whatsoever. The jury found him guilty of robbery as charged, and the judge committed him under the Federal Youth Corrections Act.¹³

II

As previously indicated, appellant advances two grounds for reversal of his conviction. The first is that the requirement of Section 3109¹⁴ that police officers announce their purpose as well as their authority before breaking into a habitation was never met.¹⁵ The second, predicated upon Chimel v. California,¹⁶ is that in any event the search uncovering the shirt and the money was too broad to withstand the Fourth Amendment's requirement of reasonableness. The record convinces us, however, that if, although only if, the entry into appellant's house and the ensuing arrest were lawful, so also was the seizure of those items.

To be sure, as appellant argues, he was arrested and handcuffed when he emerged from the crawl space, and probably could not thereafter have negotiated even the short distance across the attic room to the chest atop which the red cloth enfolding the $85 was. But whatever implications Chimel might have if it were applicable,¹⁷ it cannot affect the present situation. The arrest and seizure¹⁸ antedated the Chimel decision and Chimel does not operate retroactively.¹⁹ Since pre-Chimel doctrine governing the scope of a search incidental to a lawful arrest amply sustains the limited one here,²⁰ we cannot accept appellant's second ground as an independent basis for condemning the reception of the money in evidence.

We are, of course, left with appellant's Section 3109 grievance, and in that connection some preliminaries are necessary. His thesis is that there was no pre-entry announcement by the officers of their purpose in seeking admission into the house, and that in consequence the entry and subsequent arrest and discovery of the shirt and money were illegal. Appellant did not, however, take the course open to him under Criminal Rule 41(e) to move prior to trial for suppression of the use of those items as evidence.²¹ Instead, he first objected at trial to their introduction by the Government, and then only as the trial neared its close.²² The Government argues initially that appellant's objection was untimely, and that it should not be considered now.

Rule 41(e) specifies that motions to suppress the use of evidence "shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. . . ."²³ While nothing in the record indicates that opportunity to move for suppression was less than abundant if in fact appellant knew that the officers' pre-entry announcement was deficient, it is not entirely certain that he could have learned of the alleged short-comings in the announcement until after hearing trial testimony on the transpirations preceding entry.²⁴ It was apparently for that reason that the trial judge felt compelled to rule on the merits of the objection rather than reject it as out-of-time. Moreover, the omission of a pretrial suppression motion—which, to say the least, is not to be recommended²⁵ —is not necessarily fatal, for the Rule provides that "the court in its discretion may entertain the motion at the trial or hearing."²⁶ And although a trial judge may disregard as untimely a suppression motion first presented at trial,²⁷ we will review his ruling on the motion if he exercises his discretion in the direction of entertaining it.²⁸ It follows, then, that the propriety of the introduction of the shirt and money into evidence is properly before us on this appeal.

We may, however, properly separate out and lay aside two superficially related issues which this appeal in no wise involves. There is no contention that the police officers did not have probable cause to arrest appellant for the robbery of Miss Summers. Nor is there any contention that in the circumstances the officers were obliged to seek an arrest warrant before undertaking to come into appellant's house. Neither of these points was raised in the trial court, with the result that the record is less than full in these respects. But even the as-is record portrays a chain of events pointing the finger of guilt strongly toward appellant.²⁹ It also reveals a serious crime of violence committed, the perpetrator at large bearing evidence of the crime—which expectably would soon be concealed—and the distinct probability that further flight would be attempted if his apprehension was appreciably delayed.³⁰ It is much too late, then, to indulge any assumption that the officers did not have ample cause to believe that the occupant of the house was the culprit and that his prompt arrest was imperative.³¹

Even the one point litigated—that the officers did not comply with Section 3109 before entering appellant's house—needs considerable sharpening. The record, though underdeveloped on the issue because of the way it arose and was disposed of in the trial court, describes eloquently the magnitude of the officers' efforts to summon the occupant to the door. For some time prior to the entry —five minutes, the testimony establishes —Officer Dowling stood "beating, knocking on the front door loudly and shouting `Police officer, open up; police officer, open up,'" while Officer Smith was similarly "hollering at the back door. . . ." By Miss Summers' description, the officers "knocked and knocked and tried to get in for about five minutes and nobody answered . . .;" by Taylor's, the officers "screamed out as loud as they possibly could and no one answered."³² By no means, then, was this a case of a "no-knock" entry³³ or one effected on but an insubstantial attempt to avoid a breaking.³⁴

Because appellant's objection to introduction of the evidence seized did not lead to a hearing on the Section 3109 issue, it is quite...