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03/23/70 United States of America v. Dennis O. Miller

March 23, 1970





Reargued June 25, 1970. On Rehearing March 19, 1971.


Bazelon, Chief Judge, Wilbur K. Miller, Senior Circuit Judge and MacKinnon, Circuit Judge. Bazelon, Chief Judge (dissenting).


About 12:30 p.m. on November 14, 1967, a man walked into Burdette's Wine & Liquors in the 5900 block of Georgia Avenue and asked for a fifth of Teachers Scotch. When the bottle was brought to him, he pulled a gun and demanded the money from the cash register; the money was given to him. He then took cash from the two owners of the store, Norman Goldberg and Benjamin Monfried, and from their employee, Leon Jones, and herded the three into a walkin refrigerator. When they emerged a minute or so later, the Scotch and the robber were gone.

Goldberg called the police, and a lookout was broadcast over the police radio. Officer Alfred Innocenti, patrolling on foot in the 5500 block of Georgia Avenue, first received a call that a robbery was "in progress" at Burdette's. At that time he saw a moustachioed black man carrying a brown paper bag and running in a direction opposite to that in which the store lay. Innocenti then received a description of the robber--a "Negro male, six feet, 175 pounds and about 30 years of age, wearing a dark coat, a dark small brim hat, with a moustache," and carrying a whiskey bottle. Innocent radioed that he had a suspect in sight, and followed the man, who had by then slowed his pace to a walk. He lost sight of him briefly and inquired of a number of persons on the street, who directed him to the rear of 5503 Georgia Avenue. Innocenti radioed for assistance, and he and two other officers entered the building. The proprietor of a tailor shop on the first floor told them that a man had just gone upstairs to the office of Dr. Roberts, a dentist. The officers knocked on the door of the office, identified themselves, and demanded entry. After an initial refusal, they were admitted by appellant, who was in his shirtsleeves and "breathing heavily." A dark coat and hat lay on a couch near the door.

The record is less than luminously clear regarding subsequent events. It appears, however, that the officers' first action upon entering the suite was to ask appellant where he had been for the past five minutes. *fn1 More policemen arrived. Some of the officers looked through the entire five-room office; they found a bottle of Teachers Scotch in a brown paper bag on a shelf. *fn2 At some point, the officers became aware that a young woman, later identified as appellant's sister, was also in the offices. Leon Jones was brought to the suite and asked if he could identify appellant; he could not. Benjamin Monfried was then brought over and identified appellant as the robber; appellant was shortly thereafter taken to the police station. After his departure, his sister gave the police some $28.00 which, she said, her brother had given her. She also pointed out a drawer in Dr. Roberts' own desk in which she said appellant had placed an "object" wrapped in rags. The police opened the drawer *fn3 and removed the "object," a gun belonging to Dr. Roberts. They subsequently left the office.

Appellant was tried in May of 1968 on five counts of robbery, eight counts of assault with a deadly weapon, and one count of carrying a dangerous weapon, the charges arising out of the robbery of Burdette's and two other robberies of liquor stores in the same area. Convicted on all counts, he was sentenced to concurrent terms of imprisonment, the longest being five to fifteen years. On this appeal, he presses numerous contentions relating to joinder of the offenses for trial, pre-trial identifications, and the scope of the search in Dr. Roberts' office. For the reasons hereafter stated, we find that there was no error in the admission of the fruits of the search; that Monfried's identification of appellant at Dr. Roberts' office was not made in impermissibly suggestive circumstances; that use of a second identification, even if tainted, was harmless beyond a reasonable doubt; and that failure to sever, if error, did not prejudice appellant on those counts arising out of the Burdette's robbery. Consequently we affirm those convictions. Since the sentences are concurrent on all counts, we may therefore dispose of the remaining charges without reaching the points raised by appellant. I.

We note at the outset that appellant does not question the authority of the police in the circumstances to enter Dr. Roberts' offices in order to make the arrest. He argues instead that the bottle of Scotch and the gun, introduced into evidence against him, were the fruits of a search unlawfully broad in scope, and should therefore have been suppressed. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).

Appellant, however, has no standing to challenge the search that produced Dr. Roberts' gun. "The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence." Alderman v. United States, 394 U.S. 165, 171-172, 89 S. Ct. 961, 965, 22 L. Ed. 2d 176 (1969). Of course, as a person lawfully on the premises, appellant has standing to challenge the officers' entry into the suite itself. Jones v. United States, 362 U.S. 257, 267, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). But appellant's own testimony establishes that he had no authority to open or use the drawer in which the gun was found, nor is there any suggestion that the gun itself belonged to him. Consequently, even if the search or seizure of the gun were unlawful, appellant has not established that "he himself was the victim of an invasion of privacy." Jones v. United States (supra) at 261, 80 S. Ct. at 731.

Authorized to use the laboratory in which the bottle of whiskey was found, appellant has standing to challenge its introduction into evidence. We believe, however, that the action of the police in seizing the bottle was lawful. They had entered the suite of offices in hot pursuit of an armed and fleeing felon. Although the man they sought was in view from the moment the door was opened, they had no way of knowing who else might be on the premises.In those circumstances, the police could justifiably conduct a search of the suite to assure themselves that no hostile and possibly dangerous persons were hiding in the other rooms. Warden Md. Penitentiary v. Hayden, 387 U.S. 294, 299, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). *fn4 The bottle of whiskey itself was in plain view in the dentist's laboratory, *fn5 and there is no evidence in this record that the police engaged in any general search of the premises beyond that necessary to find any other persons who might have been in the suite. *fn6 See Stanley v. Georgia, 394 U.S. 557, 570-572, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969) (opinion of Mr. Justice Stewart). Seizure of the bottle and its subsequent admission into evidence were therefore proper.

We do not believe that the doctrine of pursuit, as reflected above, is affected by Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), assuming that case is applicable here, *fn7 Chimel dealt with the extent to which the mere fact of an arrest authorized a search as incident thereto.But Warden, Md. Penitentiary v. Hayden (supra) makes clear that the present search is not properly characterized simply as incident to appellant's arrest. *fn8 Rather, it falls within one of the "few specifically established and well-delineated exceptions" *fn9 to the requirement that judicial approval be obtained before police undertake a search. Consequently, the specific limitations established in Chimel *fn10 are not applicable to the present situation, and we find nothing in the rationale underlying Chimel --that "the scope of [a] search must be 'strictly tied to and justified by the circumstances which rendered its initiation permissible"11--inconsistent with our decision today. II.

Appellant was identified at trial by Benjamin Monfried and Norman Goldberg, co-owners of Burdette's Wine & Liquors.Each had observed the robber for several minutes during the holdup.12 Government counsel on direct examination brought out that Monfried, shortly after the robbery, was taken by police to Dr. Roberts' office, where he identified appellant. Defense counsel elicited from Goldberg that he had previously identified appellant at his hearing before a United States Commissioner, a week after the offense.13 Appellant argues that both these pretrial confrontations were improper. We find no illegality in Monfried's identification and affirm on that basis.

"The presentation of only one suspect, in the custody of the police, raises problems of suggestibility that bring us to the threshold of an issue of fairness." Wise v. United States, 127 U.S.App.D.C. 279, 282, 383 F.2d 206, 209 (1967). Yet prompt identifications seem to be more reliable than stale ones; and by bringing a suspect before witnesses within moments of the crime, the police may be able to release an innocent man apprehended in error, and begin again the search for the perpetrator of the crime. See Simmons v. United States, 390 U.S. 377, 384-385, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). These considerations led us to conclude that notwithstanding United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), the absence of counsel from ...

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