United States of America, Appellant, v. Vance E. Robinson, 533 F.2d 578 (D.C. Cir. 1976)

This is an appeal by the Government from a District Court order suppressing certain evidence guns, money, clothing and other relevant items seized by the police during a warrantless search of a parked and unoccupied car, allegedly used by appellee Robinson as the getaway car following an armed bank robbery. On June 30, 1975, a division of this court affirmed the District Court's order. This court granted the Government's petition for a rehearing en banc, and heard oral argument en banc on October 14, 1975. On October 16, 1975, an en banc order of reversal was entered, ordering that the items seized from the car be allowed into evidence if otherwise admissible. We stated that an opinion would issue in due course. We begin with a statement of facts that draws heavily on the careful statement in the panel opinion.

On the 21st of March, 1974, at about 11:15 a. m., a branch of the American Security & Trust Company, a federally insured institution located at 822 East Capitol Street, N.E., Washington, D. C., was robbed by four black males. Moments later a witness, Ms. Eleanor Leary, who was in the process of parking her car near the intersection of 8th and A Streets, observed four black men trotting north on 8th Street in her direction. Two of them got into a two-toned tan luxury automobile (later identified as a Cadillac Eldorado) and departed from the scene; one crossed the street and fled in a second vehicle; and the fourth continued his flight on foot. Alerted by the siren from a passing police car, Ms. Leary approached two policemen who had arrived on the scene and told them what she had seen. The police in turn relayed her information to the police communications office via their squad car radio. The officers next escorted Ms. Leary to the bank premises where she talked with several investigating detectives and then took her home.

At approximately 11:25 a. m., Officers Schlueter and Perkins, who were on routine patrol at the intersection of 6th and K Streets, N. E., received a flash message over their squad car radio directing them to be on the lookout for a "tan luxury auto occupied by two Negro males, last seen heading north on 8th Street, N.E." The officers were told that the car was wanted in connection with a possible bank robbery. Almost simultaneously, the officers saw Robinson's tan Eldorado Cadillac pass in the opposite lane heading north. The officers turned their marked squad car around and followed the Eldorado to 7th and Orleans Streets where it pulled over to the left curb of the street and came to a halt. It was raining very hard that day and the two suspects remained in the Eldorado for a few moments before alighting. Robinson, the driver, got out, looked over at the officers, smiled at them and then reached into the back seat to get a coat which he put on. Robinson and the passenger, who had no coat, then began walking south toward Morton Place, N.E., where they met a third person. Robinson and this third person walked into a house at 1111 7th Street, while the passenger continued walking down Morton Place.

After the two suspects had departed, Officers Schlueter and Perkins drove around the block and came up behind the Eldorado where they noticed a cable wire hanging from the trunk, which they took to be indicative of the trunk having been closed in a hurry, so they decided to take a closer look. When they looked through a window of the Eldorado, they saw a bundle of clothing with a blue coat on top beneath the passenger seat. At some point they tried to open the doors of the Eldorado but found that they were locked. Thinking it odd that the passenger had walked out into a heavy rain without putting on a coat, they called for assistance, and parked in a nearby alley where they could keep the car in sight.

Within fifteen minutes, a Detective Fontana and several others arrived at the location of the vehicle. Detective Fontana testified that when he arrived there were "about ten" police officers in the vicinity of the car. (Tr. 14). Meanwhile, a Detective Kaclik and an F.B.I. agent picked up Ms. Leary at her home and drove her to Orleans Place where she positively identified the Eldorado as one she had seen earlier. This identification was made approximately forty-five to fifty-five minutes after the robbery. (Compare Tr. 18 with Tr. 107). Officer Fontana then called a Mobile Crime Lab for assistance in opening the vehicle, and processing the search in it, being particularly interested in avoiding the complication of an unspecialized officer contributing his own prints (Tr. 21-22). After the arrival of the Mobile Crime Lab, Detective Fontana enlisted instead the aid of a young passer-by and paid him a dollar to reach through a partially open window of the car and lift the lock. The car was unlocked fifteen minutes after Ms. Leary's positive identification (Tr. 22). Officer Alford of the Mobile Crime Lab conducted a search of the passenger section and found that the blue coat under the front seat, previously observed through the window, was wrapped around money and a revolver. The car was then taken to the Fifth District headquarters where the police opened the trunk and found a carbine, money and a large purse-type bag similar to one carried by the bank robbers. During his search of the car, Officer Alford discovered a registered letter bearing Robinson's name and a nearby address. Police officers went immediately to this address but found the apartment empty.

In an eight count indictment filed May 2, 1974, Robinson and a co-defendant were charged with armed bank robbery, bank robbery, armed robbery, robbery, assault with a dangerous weapon, and Robinson was additionally charged with two counts of carrying a dangerous weapon. Subsequently, on May 17, 1974, Robinson filed a motion to suppress the fruits of the automobile search. His co-defendant, Michael J. Bradshaw, is not involved in the present appeal.

Upon the facts just recounted both the District Court and the panel came to the conclusion that, although there was probable cause to search the automobile, there was insufficient exigency to justify the failure to obtain a warrant. Treating exigency as "basically . . . a factual question," the panel decided that the District Court's ruling was not "clearly erroneous." But the facts here are not in dispute; there is no question of credibility of witnesses, and the issue is a legal one of constitutional dimension, whether these facts present a situation that the law considers "exigent" so as to dispense with the warrant requirement.¹ 

The burden is on the Government to support the legality of a warrantless search. " '(S)earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.' " Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032, 29 L. Ed. 2d 564 (1971). Furthermore "(t)he exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' " 403 U.S. at 455, 91 S. Ct. at 2032.²  The term "exigent" has become the legal designation for a set of emergency law enforcement situations excepted from the warrant requirement. These situations, in turn, are generally analyzed in terms of the various component circumstances which contribute to the need for immediate action.

The Government begins with reference to the long-established "automobile exception" to the warrant requirement where exigency is premised on mobility. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). Appellee argues that application of Carroll and its progeny to this case would make the automobile "exception" the rule, and turn the word "automobile" into the "talisman" it is not supposed to be. See Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The Government admits that the mere fact that an automobile is involved does not dispense with the warrant, but insists it remains a significant factor.

The very term "exigency" commands that analysis be shaped by the realities of the situation presented by the record. Here we are faced with the warrantless search of an unoccupied, parked and locked car. When they parked and left the car, the defendants, in effect, were voluntarily relinquishing their vehicle's mobility, at least for the present. The police then proceeded to eliminate any realistic possibility of mobility by surrounding the car with a substantial number of officers. On its face, then, this is a case where mobility of the car posed a potential rather than a present exigency.³ 

The Government responds that once it is conceded, as the panel did concede, that the potential of mobility made it reasonable to immobilize the car (an act amounting to a de facto seizure of it), and to continue the immobilization until a warrant was obtained, then under Chambers an immediate search was also proper.⁴  Defendants contend that the Chambers equivalence of immobilization and search is applicable only to the Chambers fact situation, of a car stopped while moving on the highway, where the stoppage of movement itself constitutes a substantial intrusion, and is not applicable to a parked and unoccupied car, where all that is needed is a non-intrusive overwatch.⁵ 

The application of the Carroll doctrine, as characterized in Chambers, to unoccupied, parked cars⁶  has been particularly troublesome for the Supreme Court. The plurality in Coolidge struck down the search of an unoccupied car parked on private property, and appeared to restrict Chambers to searches preceded by a valid Carroll stop, i. e., to vehicles stopped while moving on the open highway.⁷  Another plurality opinion, however, relied directly on Chambers to uphold the warrantless seizure of an unoccupied car parked in a public parking lot, and refused to attach any significance to the lack of a prior Carroll stop. See Cardwell v. Lewis, 417 U.S. 583, 594, 94 S. Ct. 2464, 2471, 41 L. Ed. 2d 325 (1974):

The fact that the car in Chambers was seized after being stopped on a highway, whereas Lewis' car was seized from a public parking lot, has little, if any, legal significance.

This plurality opinion stated that Coolidge was distinguishable from Chambers because Coolidge involved entry on private property (a driveway), whereas in Chambers "the automobile was seized from a public place where access was not meaningfully restricted." 417 U.S. at 593, 94 S. Ct. at 2471.⁸ 

Our acceptance of an independent justifying exigency put forth by the Government makes it unnecessary to attempt to synthesize and reconcile these divergent plurality opinions,⁹  and it is to that other exigency we now turn.IV.

Although this case is not governed by the Carroll "automobile exception" for cars stopped on a highway, it does present a situation in which time was of the essence and it was "not practicable to secure a warrant." Carroll, 267 U.S. at 153, 45 S. Ct. at 285. There was need to proceed as quickly as possible to apprehend the robbers who had used this as the getaway car in an armed bank robbery consummated about an hour prior to the search. There was strong probable cause to believe this was the getaway car.¹⁰  Bank robbers known to have been armed were at large, posing current dangers to the police and other citizens. An immediate search of the car could well produce the information needed to speedily apprehend the culprits. Delay to obtain a warrant would have impeded a promising police investigation and conceivably provided the added time needed by the bank robbers to avoid capture altogether. Cf. United States v. Ellis, 461 F.2d 962, 966 (2d Cir.), cert. denied,409 U.S. 866, 93 S. Ct. 162, 34 L. Ed. 2d 115 (1972). The case is within the spirit, though not the text, of the "hot pursuit" exception established in Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967).

We therefore hold that this getaway car case entails exigent circumstances that justify a warrantless search of the car for clues as to identity or location of suspects. The pertinent factors are much like those set out by this court in Dorman v. United States, 140 U.S.App.D.C. 313, 319-21, 435 F.2d 385, 391-93 (en banc, 1970), as showing "urgent need" justifying a warrantless nighttime entry into a private home to effect an arrest. As in Dorman, we have a grave offense; a clear showing of probable cause; reasonable belief that the suspects are armed; a likelihood that the suspects will escape if not speedily apprehended, and peaceable entry. This case lacks the element of "strong reason to believe that the suspect is in the premises being entered,"¹¹  which was stressed in Dorman as justifying a warrantless entry into the suspect's home to make an arrest.¹²  But in the case of a car on the street there is both lesser expectation of privacy than in a home (see note 13 infra), and the entry into a car believed on strong probable cause to be the getaway car is justified, even though the suspect is plainly not now inside, in order to get clues that will aid location and apprehension of the suspect.

The lesser expectation of privacy for an automobile, as contrasted with a person or building interior,¹³  is of particular significance to a getaway car whose very function is to use the public highway in the course of completing a crime. Mandatory licensing and registration and distinctive aspects of appearance and size in general combine to create a likelihood that a getaway car will be discovered early in a criminal investigation when the police are still "hot" on the trail. The getaway car may still contain fruits and instrumentalities of the crime, as was the case here, and in any event is likely to be a repository of clues as to the identity and location of the criminals. In sum, the prompt search of a getaway car may well be crucial in apprehending the criminals, recovering the fruits of the crime, and preventing other crimes.

Separately, none of these factors is conclusive, but taken together they identify exigent circumstances amply justifying the police in conducting an immediate warrantless search of the getaway car.

Our holding is supported by the rulings of the Sixth Circuit in United States v. Shye, 473 F.2d 1061 (1973), and United States v. Beck, 511 F.2d 997, 1001, cert. denied, 423 U.S. 836, 96 S. Ct. 63, 46 L. Ed. 2d 55 (1975). Shye also involved a warrantless search of a bank robbery getaway car. Judge McCree's opinion, joined by Judges Edwards and Cecil, eschewed reliance on the inherent mobility of the automobile, which was in a parking lot in back of an apartment house. Instead, the court premised exigency on "the existence of exceptional circumstances which because of the imperative of time excuse obtaining prior judicial approval . . . ." 473 F.2d at 1065. For the most part, the exceptional circumstances cited in Shye are the same as those relied on by this court: the search occurred soon after the robbery (two hours); the bank robbers had not been apprehended nor the money recovered; the robbers were armed; the police had strong probable cause to believe they had discovered the getaway car (as in this case, based on identification of the car by an eye-witness to the getaway); and immediate entrance into the car was required to continue a promising police investigation.¹⁴ 

A quite different matter, addressed not to the police officers so much as to the Police Chief and the responsible legal officers in this jurisdiction, is the possibility in case of emergency of obtaining warrants based on sworn oral testimony communicated by telephone or other appropriate means, with procedures for recording, transcribing and certifying the statement. Development of such procedures would obviate the need to wrestle with the troubling question of when the police may rely on the indeterminate exception permitting warrantless search in case of exigency. This message was recently voiced by Judge McGowan, who noted that the language of neither the Fourth Amendment nor the Federal Rule of Criminal Procedure 41 is incompatible with obtaining search warrants upon oral affidavits transmitted by telephone.¹⁵ 

Defendant's claim that the investigative purposes of the police could have been equally well served by the less intrusive means of staking out the car until a warrant could be obtained, would have merit if we had premised exigency on mobility, see pp. 580-583, supra, but falters when applied to the exigency on which we do rely. The search here was conducted as a possible means of effecting the immediate resolution of an urgent situation. The police were expeditiously seeking the identity and whereabouts of dangerous criminals who were not in the car.¹⁶  In Shye the Sixth Circuit rejected the contention that there was no urgency because the car was under guard and could not be moved. The court held Coolidge inapplicable because it was "imperative for the agents to know whether they were on the heels of the culprits."¹⁷ 

The District Court relied on short periods of delay by the police in conducting this investigation to reach the conclusion that no exigent circumstances existed to justify the warrantless search. The failure of the two officers who first spotted the getaway car to interrogate the occupants when they left the car is one delay cited by the District Court to belie exigency. With all deference, there are good investigative reasons why police would await specific identification of the getaway car, establishing probable cause for the search, when that is possible within a reasonably short time.¹⁸  In our view, the state of exigency continued after positive identification of the automobile as the getaway car.

The second period of delay between Ms. Leary's positive identification and the search of the car was only 15 minutes, and its purpose was to await the arrival of the mobile crime lab to maximize efficiency in handling clues.¹⁹  In a situation both serious and urgent, the brief delay of the police was not one that negatived urgency but reflected a judgment that steps prudently taken at the outset would save time a half hour hence. The police conduct is to be commended for investigative alertness rather than picked at as negativing a sense of urgency.

The order of the District Court, directing the suppression of the evidence taken from the car, is reversed.

So ordered.

ROBB, Circuit Judge, with whom TAMM and WILKEY, Circuit Judges join (concurring):

Given the facts of this case I concur in Judge Leventhal's conclusion that the search was justified by the exigency of the situation. Since there was probable cause however I think Texas v. White, 423 U.S. 67, 96 S. Ct. 304, 46 L. Ed. 2d 209, 44 U.S.L.W. 3327 (1975) would require us to sustain the search, even in the absence of exigency. As I read Texas v. White "the probable cause factor" would be decisive.