Washington v. United States

• Decision Date: 19 February 1959
• Docket Number: No. 14712.,14712.
• Citation: 263 F.2d 742,105 US App. DC 58
• Parties: Artis S. WASHINGTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

105 US App. DC 58, 263 F.2d 742 (1959)

Artis S. WASHINGTON, Appellant, v.UNITED STATES of America, Appellee.

No. 14712.

United States Court of Appeals District of Columbia Circuit.

Argued December 15, 1958.

Decided February 19, 1959.

Mr. John H. Pickering, Washington, D. C.(appointed by this Court), for appellant.

Mr. Walter J. Bonner, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

Before WILBUR K. MILLER, WASHINGTON and BURGER, Circuit Judges.

BURGER, Circuit Judge.

This is an appeal from a conviction of housebreaking (with intent to steal) and of assault.The assault victim, a thirteen year old girl, and her grandfather were sleeping in his ground floor living room where they had gone after the child had been frightened by some noise in her bedroom.The child testified that she suddenly awoke to find an intruder, whom she identified at a subsequent line-up and at trial as appellant, with his hand on the bottom of her blouse.She related that, when she screamed, the intruder put his hands on her neck, told her to shut up, and then shook her and hit her on the head with his hand as she continued to scream.

Awakened by these screams, the grand-father struck the intruder with a cane as he fled.The grandfather testified on cross-examination by defense counsel that entry had apparently been gained by forcing open a kitchen window and that the assault and entry had occurred between midnight and 1:00 a.m.

The police were called, and the girl identified the intruder to them as a man she had seen the previous day in front of her grandfather's house talking to a neighbor boy.According to the policeman, he promptly learned from this boy that the man's first name was Artis and that he was frequently seen at a nearby liquor store.Calling the liquor store proprietor, the police learned that a man named Artis was an occasional employee and found out his approximate address.The police reached this address, corrected slightly by neighbors, at about 1 a.m.,¹ or less than an hour after the intruder's attack and flight.The record shows an uninterrupted police search for the intruder during the interval.

Called as a defense witness, appellant's common-law wife testified that she was awakened in her second floor bedroom by a loud knocking on a downstairs window.She stated:

"I got up and looked out the window and that is when I seen the officer, and I raised the window and ask who they was looking for and the officer say, `May I come in and speak to you and your husband for a minute,\' and I say, `Yes,\' and I run down * * * and opened the door and let them in."

Appellant's wife and her mother both testified at trial that he had been home all evening.Police, however, had found his shoes wet and covered with fresh yellow mud when they were admitted to his room.The wife said she had borrowed the shoes to go out into the back yard (which she described as muddy) during the night, but the prosecution showed that the only mud or dirt in that yard was black, not yellow.Appellant did not testify and relied for his defense entirely on the alibi supplied by his wife and her mother, who lived downstairs at the same address.

Appellant's primary attack on his conviction is twofold: (1)he was prejudiced by the use at trial of evidence obtained as the result of an illegal search, and (2) there was no showing of intent to steal, an element of the offense charged.

The record reveals an unbroken police search for the intruder from the moment they were called immediately after he fled.This search included a careful step-by-step process of identification, location and finally interrogation before arrest.At the moment the police were admitted to the house, they had ample probable cause to believe that appellant had committed a felony.The statements of the young girl, the neighbor boy, the liquor store proprietor, and appellant's neighbors adequately identified appellant as the intruder.When the police partially verified these statements by determining that a man named Artis did in fact live at a given address, they had established adequate probable cause, and were justified in making an arrest without a warrant.²We need not decide whether police entry was by permission or invitation, cf.Judd v. United States, 1951, 89 U.S.App.D.C. 64, 190 F.2d 649;Williams v. United States, 104 U.S.App.D.C. ___, 263 F.2d 487 since "if there was probable cause to make an arrest — as we hold there was — there was justification for at least the peaceable entry which here was made."Ellison v. United States, 1953, 93 U.S. App.D.C. 1, 3, 206 F.2d 476, 479.But seeMiller v. United States, 1958, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332(forcible rather than peaceable entry).

Our holding is not in conflict with Morrison v. United States.³There we held that "officers without a warrant cannot enter, even without actually breaking, a private dwelling to search for a suspected felon, no permission being given and no circumstances of necessitous haste being present."262 F.2d at page 454.The primary authorities relied on for that holding were Miller v. United States, supra, and Accarino v. United States,⁴ both involving physical breaking by the police to gain entry to a dwelling.The Morrison case did not involve an actual breaking, but it did involve a clearly illegal entry.

Here, whether or not consent⁵ was given for the entry, it was not illegal.This legal entry was made in pursuance of an uninterrupted police search for appellant.Furthermore, there was no testimony at trial prejudicial to...