Keiningham v. United States

DANAHER, Circuit Judge

(dissenting).

We are concerned here with the question of whether or not money, numbers slips, betting records, adding machines and other such equipment utilized in a gambling enterprise were lawfully seized when the appellants were arrested on July 10, 1959. . The appellants have not challenged either the sufficiency or the form of the search warrant authorizing officers to search 1106-18th Street, N. W., or warrants commanding the arrest of the various appellants.1 No question was presented as to the U. S. Commissioner’s determination of the existence of “probable cause,” indeed it would appear from the record that none could be. ‘

Appellants had sought to suppress the • use of the evidence in the hands of the Government, but after hearing and argument, the trial judge denied their motion. At trial, appellants renewed their motion which was again denied, and appellants were convicted. The record shows that these appellants were conducting a gambling establishment on an extensive scale.. Some 73 numbers sellers were employed, and for a single day more than 2,000 slips had been written representing bets which totaled $3,198.29. In some factual aspects, the case is much like Beard v. United States,2 where the officers broke into a gambling house and apprehended Beard and various co-defendants then actually engaged in the operation of their illegal enterprise.

“The premises were a secret rendezvous or hideout for illegal activities * * *"3

*131Appellants were not in a dwelling, despite the outward appearance of the building. No one lived there, as counsel at the bar was bound to concede. On the contrary, the officers here arrested the appellants in the headquarters of the.criminal operations. They made no general exploratory search. The men were seated around their tables and their equipment, processing the numbers bets. The evidence seized by the police was right there on those tables in plain view. “The right to search an arrested person and to take the stuff on top of the desk at which he sits has a justification of necessity which does not eat away the great principle of the Fourth Amendment.” 4

In my view this case presents a complete “justification of necessity,” not only because the police took only the fruits of the crime, spread out before their very eyes, but “to avoid destruction of evidence by the arrested person. * * * From this it follows that officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control.” 5 Accordingly, I would sustain the trial judge in view of the circumstances6 which follow.

After extended surveillance of the conduct of certain of the accused, said to be involved in the “numbers game,” the police finally tracked the appellants to premises at 1106-18th Street, N. W., one of a series of row-type houses. The evidence was submitted to the United States Commissioner who determined on July 10, 1959, that probable cause had been established, not only for a search warrant to search No. 1106 but to justify warrants of arrest. That afternoon one of the accused was seen to approach and enter the front door at 1106. Some 15 to 20 minutes later a second of the accused did likewise. After a comparable interval a third man entered. The trial judge fairly might conclude in the light of such conduct and of all the evidence developed, that to arrest any one of the men might well have led to a warning to others who might be part of the ring. It might well have seemed to the trier eminently desirable that the accused be apprehended in a group in the very act of conducting their illicit enterprise. At the very least, experienced officers assigned to the morals squad might well conclude that as each man had been carrying a brown manila folder or similar package, they intended to meet among themselves, and possibly with others as yet unknown to the police, there to determine the winners and to arrange to pay off the bets. Finally a lieutenant of police appeared who had the warrants. Officers then entered the common hallway of 1106 and knocked on the door of apartment No. 1. They identified themselves to a woman who opened the door. In seeking the accused, the officers made a search of the lower floors of the house, but found none of them. From the hallway a door led to the apartment on the second floor. The police knocked, announced their identity, and their purpose as they demanded admittance, but met with no response. • Only then did they,force a door panel, unlock the door and mount .the stairway. A search of the second floor disclosed none of the accused although, obviously, several had been seen to enter a short *132time earlier. Officers at the rear of the building had seen no one leave.

Further examination disclosed a rear porch which had been “blinded” by cloth panels. The appellants had fashioned a veritable conduit, like a tunnel or closed passageway, leading from the hallway of 1106, up the stairs, through the “blinded” porch to the scene of their operations. Nearby on the porch were some carpenter tools next to a doorway which had recently been cut into a flimsy wall of the closed-in porch. It was not unreasonable to conclude that by obviously purposeful ruse, the appellants had utilized 1106 for no other purpose than to cloak their operations. Through the use of that doorway they had simply combined their apartment at 1106 into a single unit when joined with 1108, next door. If appellants had laid down a trail of yarn to their hideout, their course could not have been more obvious.

Yet, only by the lawful use of the warrant to search 1106 could the police have discovered and followed the trail. Obviously, had the police known that the appellants had made 1108 — and not 1106 ■ — their headquarters, the police might lawfully at the front door of 1108 have done precisely what they did do. The Supreme Court in Miller v. United States, 1958, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332, considered the case where a dwelling was forcibly entered by officers who without a warrant of any kind, at three o’clock in the morning, had invaded the living quarters of the appellants. The Court decided that inadequate warning had been given of their purpose before the officers broke open a door. Even under such circumstances, the majority opinion observed: “A few more words by the officers would have satisfied the requirement in this case.” Id., 357 U.S. at pages 309-310, 78 S.Ct. at page 1196. In the instant case more than the “few more words by the officers” were spoken.

At the doorway on the second floor porch at 1108, the officers observed that panel drapes had been installed. The drapes were not quite closed. Peering within, the officers found the appellants inside seated at their tables, processing numbers bets, with numbers slips before them. They were utilizing adding machines and other equipment, all within sight of the officers. The police again called out. They identified themselves. They stated that they had warrants for the arrest of specifically named appellants on charges of violation of the gambling laws. They demanded admittance. Instead of opening the door, the appellants jumped up and commenced to run in the opposite direction. Thereupon the police forced the door, entered, arrested the appellants and took possession of the evidence which the appellants had been using.

The officers made no other search. They seized no other evidence. They took only the instrumentalities of the offense. I need not rest upon whether or not there had been a “reasonable” search within the rule announced by the majority in United States v. Rabinowitz, supra note 4, for there was no search. I need not rest upon whether or not there was time to procure a search warrant. He is naive, indeed, who would suppose that numbers operators such as these would complacently preserve the evidence of their mutual complicity. We did not have here a question of mere “reasonable” grounds for police action without a warrant.7 These officers had already submitted their case to the magistrate. He had determined that the appellants should be arrested. If the police used the “conduit” from 1106 to 1108 as an entranceway, it was no more than the appellants themselves had made it. It was their passageway. The elusive tactics adopted by these appellants had already proved so successful that the police, despite their *133earlier surveillance, had no knowledge that the premises at 1108 were their real objective or that the accused had there hidden out. The police did no more than follow what was, in effect, a continuous corridor, which comprised a single unit contrived by these appellants, not only to gain access to their own quarters, but as a means of egress and escape if entrance had been sought at the street door of 1108.

Here the police lawfully entered according to the search warrant and thereafter acted pursuant to the arrest warrants. They identified themselves and announced their purpose. They uttered the “few more words.” In my view, these officers engaged in daily battle with the criminal elements violated no Fourth Amendment rights. I think the evidence of crime was competent and was properly received. I would affirm.

. The officers had no arrest warrant for appellant Kaufman. However if the evidence was competent as to the other appellants, it applied equally to Kaufman. See Wyche v. United States, 1951, 90 U.S.App.D.C. 67, 193 F.2d 703, certiorari denied 1952, 342 U.S. 943, 72 S.Ct. 556, 96 L.Ed. 702.

. 1936, 65 App.D.C. 231, 82 F.2d 837, certiorari denied 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1382.

. Cf. Wyche v. United States, supra note 1, 90 U.S.App.D.C. at page 69, 193 F.2d at page 705.

. Mr. Justice Frankfurter, dissenting, United States v. Rabinowitz, 1950, 339 U.S. 56, 79, 70 S.Ct. 430, 441, 94 L.Ed.653; and, of course, under the majority view in Rabinowitz, the evidence was lawfully seized as an incident of a lawful arrest, 339 U.S. at pages 60, 65, 70 S.Ct. at pages 432, 435. Apart from the arrest warrant, the officers had probable cause to believe that a felony was in progress. Smith v. United States, 1958, 103 U.S.App.D.C. 48, 254 F.2d 751, certiorari denied 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552.

. Id., 339 U.S. at page 72, 70 S.Ct. at page 438. The officers took from each of several appellants, keys to the premises.

. After hearing and argument on the motion to suppress Judge Holtzoff in ruling remarked: “We have been presented in this case a subterfuge, an insidious plot and scheme to evade the police and put the police off the defendants’ trail. The law, indeed, would be both absurd and impotent if such a scheme were permitted to succeed.”

. Cf. Bell v. United States, 1958, 102 U.S.App.D.C. 383, 254 F.2d 82, certiorari denied 358 U.S. 885, 79 S.Ct. 126, 3 L.Ed. 2d 113; Trupiano v. United States, 1948, 334 U.S. 699, 708, 68 S.Ct. 1229, 92 L.Ed. 1663. (Nor, as to the latter case need we dwell upon the nuances as expounded in the various opinions in United States v. Rabinowitz and cases cited, supra note 4.)