White v. United States

• Decision Date: 15 April 1965
• Docket Number: No. 18171.,18171.
• Citation: 346 F.2d 800,120 US App. DC 319
• Parties: Roland J. WHITE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

120 US App. DC 319, 346 F.2d 800 (1965)

Roland J. WHITE, Appellant, v. UNITED STATES of America, Appellee.

No. 18171.

United States Court of Appeals District of Columbia Circuit.

Argued September 25, 1964.

Decided April 15, 1965.

Petition for Rehearing and for Rehearing Denied June 29, 1965.

Mr. Benjamin W. Cotten (appointed by this court), Washington, D. C., for appellant.

Mr. Norman Sepenuk, Attorney, Department of Justice, with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, Harold H. Titus, Jr., Asst. U. S. Attys., and Joseph M. Howard, Attorney, Department of Justice, were on the brief, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and FAHY and DANAHER, Circuit Judges.

Petition for Rehearing En Banc and for Rehearing before the Division Denied June 29, 1965.

DANAHER, Circuit Judge:

Convicted on two counts of violations of the federal narcotics laws this appellant here alleges that a quantity of drugs erroneously had been received in evidence against him. He argues that (1) a search warrant had been issued without an adequate showing of probable cause, and in any event, (2) the contraband had been seized illegally because of the manner in which the search warrant had been executed.

I

The United States Commissioner had issued a search warrant directing the officers to search the appellant's apartment No. 33 at 604 — 46th Place, S. E. in the District of Columbia. The premises according to affidavits before the Commissioner had been kept under surveillance for a period of some two weeks following complaints that this previously convicted appellant was selling narcotics at his apartment. Detective Aiken's affidavit disclosed the results of his own personal observations, details as to which need no present reproduction. We note only that the facts adequately met the standards spelled out in United States v. Ventresca¹ and amply justified the Commissioner's conclusion that probable cause existed for the issuance of the search warrant. The District Court did not err in so deciding.

II

Appellant contends principally that the District Court erred in denying his pre-trial motion to suppress after a hearing at which he contended that the officers had not complied with the provisions of 18 U.S.C. § 3109 (1965). The trial judge could have found that as the officers approached the appellant's apartment, the door was partly opened as the appellant's 8-year-old son was about to enter the hallway. An officer asked if Roland White or his wife was at home. The boy answered affirmatively and opened the door wider. An officer then saw Mrs. White to whom he showed his badge. He told her he had a search warrant for the apartment.

"When you said that, where were you standing at that time?

"A. I was still standing in the doorway.²

"Q. In the doorway?

"A. Yes, sir.

"Q. Were you inside the apartment or in the doorway?

"A. I was in the doorway itself.

"Q. Not inside the apartment?

"A. No, sir."

An officer then walked over to Mrs. White and asked her if she had narcotics in the place and "she said that White, this man, was handling everything here, she didn't have anything to do with anything."

Such was the setting in which we are asked to say that the entry into the appellant's apartment was unlawful. Many cases demonstrate that some overzealous officers, more often than should be so, have broken into dwellings when lacking search warrants; in trying to effectuate arrests, they have broken doors without warning; they even have conducted unlawful raids in the night season. The courts have steadfastly and properly refused to tolerate³ illegal searches of private dwellings. Where, on the other hand, the officers have sought to conform their conduct with what the Constitution requires, the Court has said "It is vital that having done so their actions should be sustained under a system of justice responsive both to the needs of individual liberty and the rights of the community."⁴

Here the entry occurred at 2 o'clock in the afternoon. The officers had a valid search warrant based upon a surveillance and observations of two weeks. The apartment door by sheer fortuity, was open at least part way as the officers approached, and was then opened further as the boy stepped back into the room, thus disclosing the presence of Mrs. White. The officers identified themselves and announced that they were there with a search warrant. To repeat in part, the officer was not then inside the apartment. He was at the doorway, with his foot "in the doorway,"⁵ "the little piece that comes across the door." We have been asked to hold as a matter of law that an officer, merely standing as described — by that very act — while announcing his identity and purpose, had unlawfully broken into White's apartment. We of the majority decline to do so.⁶

Here, we have no problem as to probable cause which had already been determined by the United States Commissioner when he issued a valid search warrant. Concededly, the requisite announcement of identity and purpose had been given.⁷

Title 18 U.S.C. § 3109 (1965) provides that under the circumstances there delimited, an "officer may break open any * * * door * * * to execute a search warrant * * *." The section does not prohibit action, it specifically permits violence.⁸ Its requirement of announcement of identification and purpose was recognized by Mr. Justice Brennan in Miller v. United States, supra note 7, as "a safeguard for the police themselves who might be mistaken for prowlers and be shot down by a fearful householder." 357 U.S. at 313, 78 S.Ct. at 1198. Obviously, there was here no breaking open, of a door, of any part of the house or of anything therein.

Nor do we here have a situation such as had been disclosed in Keiningham v. United States.⁹ There the officers had a search warrant, to be sure, but it had been issued to authorize the search of a residence at 1106 — 18th Street, N.W., one of a series of row houses. They had no search warrant for the dwelling next door, known as 1108 — 18th Street. The adjoining row houses had been so constructed that partitions separated the upper rear porches of each of the houses. The officers lawfully entered the premises known as 1106 but found no one. They did not stop there. Instead, without announcement of any kind, they opened the porch door leading to the porch of 1108. They crossed that porch and approached the entrance to 1108. Only then did the police announce their identity, and they thereupon forced open the door at 1108. Under such circumstances, a majority said, quite apart from its dictum: "We hold that the officers `entered' 1108 when they passed through the door in the partition, separating the two houses and we decide these cases on the narrow ground that an announcement, at least, was required at that time."¹⁰ (Emphasis added.)

Some courts have discussed a person's right of privacy as though it were an absolute, to be protected at all events. Of course that is not so. The householder's right is shielded by the Fourth Amendment, but when the established requirements have been met,¹¹ the public right is paramount.

So, too, Mr. Justice Brennan saw 18 U.S.C. § 3109 as congressional recognition of the "requirement of prior notice of authority and purpose before forcing entry into a home * * *."¹² Thus even though section 3109 did not apply to the warrantless violent breaking in Miller, the Court "drew upon an analogy"¹³ to that statute found in our Accarino rule, supra note 7. The Court obviously deemed the householder's "awareness" or lack of it to be controlling in terms of whether or not the right of privacy must yield. The Court's holding in Miller accordingly was specific: "The petitioner could not be lawfully arrested in his home by officers breaking in without first giving him notice of their authority and purpose."¹⁴

In our case every reason for the exclusionary rule in Miller, just as in section 3109 situations, was fully satisfied. The officer was not inside the apartment. The door was open. He saw Mrs. White, showed her his badge and told her he had a search warrant for the premises. At that moment as defense counsel and the judge agreed, supra note 2, the officer stood, he did not enter the apartment except for placing his foot on the threshold.¹⁵

We hold on such facts¹⁶ that there was no such unannounced breaking as to invalidate the entry which was made subsequent to the notice of "authority and purpose." The trial judge did not err in his denial of the motion to suppress.

Affirmed.

FAHY, Circuit Judge (dissenting):

I agree that the search warrant was validly issued but I dissent because of the manner in which it was executed.

18 U.S.C. § 3109 provides:

"The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance * * *."

In Keiningham v. United States, 109 U.S.App.D.C. 272, 287 F.2d 126, the officers had an arrest warrant, and also a search warrant for premises No. 1106. Those premises adjoined premises No. 1108 and a door from the former led to the latter. The officers entered No. 1108 through the door and searched those premises. This court held the search unlawful and the evidence procured thereby inadmissible, saying,

"Since the entry into 1108 was made without permission and was not preceded by an announcement, that entry was improper and the search which followed that improper entry cannot be upheld even if the search would otherwise have been valid. * * * We think that a person\'s right to privacy in his home (and the limitation of authority to a searching police officer) is governed by something more than the fortuitous circumstance of an unlocked door, and that the word `break\' as used in 18 U.S.C. § 3109, means `enter without permission.\' We think that a `peaceful\' entry which does not violate the provisions of §

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