United States v. Scott

OPINION

Before MERRILL and TRASK, Circuit Judges, and FERGUSON * District Judge. MERRILL, Circuit Judge:

On this appeal from a conviction under 18 U.S.C. § 2113(a) for bank robbery appellants assign as error denial of their motion to suppress evidence obtained in a warrantless search of an apartment and the subsequent introduction of such evidence at trial.

On September 7, 1973, at approximately 2:05 p.m., a branch of the Security Pacific National Bank in National City, California, was robbed by four male *699blacks armed with a sawed-off shotgun and revolvers. Local police promptly arrived and were advised by witnesses that the robbers were last seen driving a blue Chevrolet, the partial license number of which had been obtained. Ten minutes after the robbery the suspect getaway car was located. It was ascertained to have been stolen. A paper bag containing shotgun shells was found on the floor on the passenger side. The roadway showed tire marks indicating that another car had recently left the area under high acceleration, and this suggested to the officers that the robbers had switched cars. Similar tire marks were found on two successive street intersections leading away from the apparent switch point, at the last of which witnesses had observed a bronze colored car the partial license number of which had been obtained. The car had been occupied by blacks and had been travel-ling at a high rate of speed. Proceeding in the direction indicated the officers found other witnesses who had seen a bronze car occupied by blacks travelling at high speed. The trail led to a parking lot at the rear of a two-story apartment building containing approximately twenty apartment units opening onto and surrounding a courtyard. In the parking lot a bronze colored car was found at 2:45 p.m. The partial license numbers matched. The hood was warm to the touch indicating that the car had recently been driven. Witnesses previously interviewed were brought to the lot and picked out the car as the one they had seen travelling at high speed. Agents of the FBI, already summoned to the bank, were then summoned to the apartment house.

Other than the apartment house, the buildings nearest the parking lot were several “private houses” some 30 to 50 feet distant from the lot. One of the local officers present regarded the apartment house as a haven for law violators. At the hearing on the motion to suppress he testified: “Within the last year and a half I have made seven felony arrests out of this complex; armed robbery, burglary, purse snatching. It is noted to be predominantly black. Maybe two families, a husband and wife-type family in the complex. The rest are single adults. There is one white family that lives in the complex, but I don’t recall which apartment it is”. Another local officer who was present at the scene later testified that he had no knowledge of complaints concerning unauthorized parking in the lot at the rear of the apartment house. One FBI agent testified at the hearing on the motion to suppress that on his way to the apartment house he heard on his car radio that a witness had seen four blacks leave the car in the lot and enter the courtyard of the apartment. The identity of the witness, the source of the broadcast, or the person who made the broadcast was never ascertained.

With the attention of the officers thus centered on the apartment house, the officers commenced searching the apartments. Apartments 2 and 3 were known to a local officer as each being occupied by three to four adult male blacks. These apartments were searched without result. The same officer knew that apartments 1 and 5 were occupied by the manager and assistant manager. The manager, on inquiry from FBI, informed the agents that five of the remaining apartments were occupied by adult male blacks. A search of these apartments was begun on descending order of apartment number. Four of these apartments were searched; entrance was gained to one of them by use of the manager’s pass key when knocking at the door brought no response.

At approximately 3:45 p.m. apartment •7 remained as the last unsearched apartment said to be occupied by adult male blacks and the attention of all in the courtyard focussed on this apartment. For two minutes or longer agents knocked loudly and loudly announced their identity and desire to speak to the occupants. No response was received. The manager’s pass key was obtained. One officer testified that at this point he “heard noises from the interior — scuf*700fling noises.” The agents then entered by pass key. Appellants were found hiding there. Evidence was found and seized. This evidence was the subject of the motion to suppress.

The district court denied the motion to suppress on the theory that this case presented an instance of “hot pursuit” and that search of apartment 7 was, therefore, proper under Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). That case was concerned primarily with the need for warrant in the face of the exigencies of hot pursuit and with the proper scope of search after lawful entry. No problem was presented respecting probable cause to suppose the presence of the fugitive suspect. That is the problem presented in the case before us.

Under Warden v. Hayden the exigencies of hot pursuit can in proper circumstances excuse lack of warrant. See, e. g., United States v. Shye, 492 F.2d 886 (6th Cir. 1974); United States v. Ganter, 436 F.2d 364 (7th Cir. 1970). We agree with the district court that such circumstances were present here. Had the officers delayed their entry to apartment 7 to secure a search warrant for that apartment, the suspects might well have escaped or concealed evidence, and the risk of armed confrontation would have been increased.

The exigencies of hot pursuit cannot, however, excuse lack of probable cause. See Wong Sun v. United States, 371 U.S. 471, 479-80, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Since we discern no indication that a lower standard of probable cause applies where exigencies excuse lack of warrant than where a warrant is sought, see Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); compare United States v. White, 401 U.S. 745, 768, 782 n. 19, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting), we apply no lower standard to this case. Accepting that pursuit here had brought the officers to the apartment house, this did not render each apartment in it subject to search. The occupants of each apartment had their independent right to be free from unreasonable search. No apartment was subject to entry in the absence of probable cause to believe that the robbers were present in that particular apartment.

The question, then, is whether the officers at apartment 7 had, at the time of entry, probable cause to believe that the fugitives they sought were there; whether, with action frozen at that moment, a warrant could properly have been issued for search of the apartment. In our judgment it could. There was reasonable cause to believe that the fugitives had entered the apartment complex. There was knowledge that they were not present in 6 of the 7 units most likely to be their objectives.1 Apartment 7 then remained as the most likely choice. There was cause to believe that it was occupied and that the occupant or occupants did not wish to admit their presence.

The same circumstances excuse the noncompliance by the federal officers with 18 U.S.C. § 3109 and by the state officers with Cal.Penal Code § 844 (West 1970), see Miller v. United States, 357 U.S. 301, 305-06, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), by entering without prior announcement of their purpose. Such announcement was not required once there was probable cause to suspect that the apartment was occupied by the robbers, who had wielded a sawed-off shotgun and revolvers during the rob*701bery. United States v. McShane, 462 F.2d 5 (9th Cir. 1972); United States v. Smith, 456 F.2d 1236 (9th Cir. 1972), cert. denied, 410 U.S. 912, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973); Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966), cert. denied, 388 U.S. 922, 87 S.Ct. 2123, 18 L.Ed.2d 1370 (1967), 393 U.S. 985, 89 S.Ct. 460, 21 L.Ed.2d 446 (1968); People v. Tribble, 4 Cal.3d 826, 94 Cal.Rptr. 613, 484 P.2d 589 (1971).

We conclude that the warrantless search was proper. The evidence thus obtained was sufficient to sustain the conviction of each of the four appellants.

Judgment affirmed.

. The record does not reveal the circumstances under which the officers secured admission to the apartments entered other than the one entered by passkey. However, even assuming impropriety, appellants lack standing to complain of the intrusion. Such would have been the rule had incriminating evidence been seized. See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). In our judgment no broader rule of standing should apply where violations of the rights of third parties merely contribute to the existence of probable cause.