(concurring separately).
I agree that we must reverse because of the use of evidence obtained in the course of an illegal search. The rules as to searches of private dwellings without a search warrant are so clear and have so often been stated, it would seem to be nothing short of astonishing that we should continue to receive cases presenting the point involved here.
The police may not break into a private home. Accarino v. United States, 1949, 85 U.S.App.D.C. 394, 179 F.2d 456. They may not force open a window in a landlady’s room and thereafter search the apartment of a roomer in a lodging house. McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. “The right of officers to thrust themselves into a home is * * * a grave concern * * *.” Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, and only when there are “exceptional circumstances” may “a magistrate’s warrant for search * * * be dispensed with.” Id., 338 U.S. at pages 14-15, 68 S.Ct. at page 369. The police may not invade a private home by stealth. Gouled v. United States, 1921, 255 U.S. 298, 305, 41 S.Ct. 261, 65 L.Ed. 647. The police may not invade the privacy of a dwelling through falsehood. Gatewood v. United States, 1953, 93 U.S. App.D.C. 226, 209 F.2d 789. Evidence seized by state officers, even without involvement of federal officers, in the course of the illegal invasion of a motel room may not be received in a criminal trial in the courts of the District of Columbia. Hanna v. United States, 1958, 104 U.S.App.D.C. -, 260 F.2d 723. Officers without a search warrant may not invade a dwelling to search it, even during the absence of the residents. Morrison v. United States, 1958, 104 U. S.App.D.C. -, 262 F.2d 449. As a prime understatement our opinion in the Morrison case pointed out: “This court has several times in recent years examined the problem of the invasion of private dwellings by police officers. The Supreme Court has examined the problem many times. We think it is unnecessary to discuss the matter again at any length.” (Emphasis added.)
And so it would seem, and yet these cases reach us. If, perchance, the police are not familiar with the rules, the prosecutor is, or is presumed to be. The opinions referred to have cited many other cases which he should recognize. It is the duty of the prosecutor to know not only whom to prosecute, but when. Thus, in the course of preparation of his case for trial, absent “exceptional circumstances,” seldom found, the prosecutor should appraise the available evidence and should apply the rules. Unhesitatingly he should refuse to go forward with the presentation of evidence which has been obtained by illegal police invasion of a private home. If his case depends upon such evidence, he should dismiss the prosecution. If he can present a case without the use of evidence illegally procured, it should not be offered. But if notwithstanding, he insists upon introducing evidence illegally gained through improper invasion of the sanctity of a dwelling, we should tell him once again and for all, we will reverse a conviction, as we now do.
One would have thought after the Morrison opinion, that before these cases reach us involving the point under discussion, the Government would re-assess its position, especially where the rules so emphatically have been reiterated. One more illustration perhaps will serve. In Judd v. United States, 1951, 89 U.S.App. D.C. 64, 190 F.2d 649, the police testified that the accused did not give actual consent to search Judd’s home. He merely gave consent to go there. The police were looking for a pair of shoes, not a coat from which a button might be missing. We held specifically in the Judd case that the search and seizure were not permissible and that the evidence waa inadmissible. So the conviction was reversed.
*492In the instant case the officer gained access to the apartment by exhibiting his badge and telling the appellant’s sister that he did not wish to discuss his private business out in the hallway. “She had no objections to my entering the apartment, no,” he testified. There was no slightest suggestion on the record that permission to enter thus gained, even if lawful to that extent, could be equated with authorization to search the appellant’s clothes closet. The search without a warrant was clearly illegal. There were no “exceptional circumstances.” Evidence gleaned as a result of the unlawful invasion should not have been offered, but since it was received against the appellant, the conviction may not stand.