James E. Ford, Appellant, v. United States of America, Appellee.george Kimble, Appellant, v. United States of America, Appellee, 352 F.2d 927 (D.C. Cir. 1965)

While I join the Court's opinion I do so because nothing the Court holds is inconsistent with my belief that there having been time to get a warrant, probable cause alone could not have justified the arrest of petitioner Toy without a warrant.

371 U.S. at 497, 83 S. Ct. at 422. This view was not expressed by the Court.

The practicability test is also absent from our own decisions. Mills v. United States, 90 U.S.App.D.C. 365, 196 F.2d 600, cert. denied, 344 U.S. 826, 73 S. Ct. 27, 97 L. Ed. 643; Willis v. United States, 106 U.S.App.D.C. 211, 271 F.2d 477, cert. denied, 362 U.S. 964, 80 S. Ct. 881, 4 L. Ed. 2d 879; Stephens v. United States, 106 U.S.App.D.C. 249, 250, 271 F.2d 832, 833, where Judge Bazelon said:

The District of Columbia follows the common law rule that a law officer may arrest without a warrant if * * * there is probable cause to believe that a felony has been committed and that the arrested person committed it * * *.

And see Smith v. United States, 103 U. S.App.D.C. 48, 254 F.2d 751, cert. denied, 357 U.S. 937, 78 S. Ct. 1388, 2 L. Ed. 2d 1552. Similar cases in other courts, federal and State, are legion.

In Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666, the invalidity of Gatlin's arrest was lack of probable cause; and the arrest of Miller, a co-defendant, was also held to be unsupported by probable cause. There is, however, a discussion in footnote 10 in Gatlin of the failure of the officers in arresting Miller to obtain an arrest warrant. We commented that the officers,

failed to place their information before a "neutral and detached magistrate" who obviously is in a better position to determine probable cause than an "officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 * * * This failure alone, absent exceptional circumstances, may be sufficient to invalidate this arrest.

The arrest thus referred to was in the attic of a home which had been entered and was being searched by officers without either an arrest or search warrant. And each case we cited involved either search of a home or of occupied premises apart from an arrest or, as in Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, search of a home intermingled with an arrest. These situations raise different questions from those involved in an arrest alone. Probable cause is not ordinarily sufficient under the reasonableness test of the Fourth Amendment to support search of a home without a search warrant. Agnello v. United States, 269 U.S. 20, 33, 46 S. Ct. 4; Jones v. United States, 357 U.S. 493, 497-498, 78 S. Ct. 1253, 2 L. Ed. 2d 1514, citing as closely relevant, Taylor v. United States, 286 U.S. 1, 52 S. Ct. 466, 76 L. Ed. 951, and Johnson v. United States, supra. It was such a search, to be distinguished from an arrest in a public place for felony, that evoked the often-quoted language of Mr. Justice Jackson for the Court in Johnson:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.³ 

3. In United States v. Lefkowitz, 285 U.S. 452, 464, 52 S. Ct. 420, 76 L. Ed. 877, this court said: "* * * the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests. Security against unlawful searches is more likely to be attained by resort to search warrants than by reliance upon the caution and sagacity of petty officers while acting under the excitement that attends the capture of persons accused of crime. * * *"

Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers.

333 U.S. at 13-14, 68 S. Ct. at 369.⁷ 

The Fourth Amendment test of reasonableness of course applies to arrests as well as to searches and seizures. See Giordenello v. United States, 357 U.S. 480, 485-486, 78 S. Ct. 1245. Reasonableness, however, varies with the subject matter and the circumstances. This is the lesson of the cases. Warrantless searches and seizures inside homes or occupied premises often have been held unreasonable, as in Jones v. United States, 357 U.S. 493, 78 S. Ct. 1253; McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153; and Johnson v. United States, supra; and when held lawful, as in Rabinowitz, supra, and Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399, have evoked strong disagreement. But the cloud over Rabinowitz and Harris concerning the need for a search warrant when it is practicable to obtain one has not reached the same intensity in arrest cases unaccompanied by the searching of premises. The disagreement has been over the use of a valid arrest on warrant to authorize as incidental thereto a search of the whole premises where the arrest is made. The dissent in Rabinowitz, 339 U.S. supra at 72, 70 S. Ct. at 437 points out that search of an arrested person is

to protect the arresting officer and to deprive the prisoner of potential means of escape, Closson v. Morrison, 47 N.H. 482, and, secondly, 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,

but not, it was protested, the whole premises where the arrest occurs.⁸  The dissenting Justices, however, recognized the well settled exception rooted in necessity, illustrated by Carroll v. United States, supra, 267 U.S. at 153, 45 S. Ct. 28, which sanctioned a warrantless search and seizure of a vehicle

on the ground that "it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." 339 U.S. at 73, 70 S. Ct. at 438. The further statement in Carroll, supra, 267 U.S. at 156, 45 S. Ct. at 286, that,

In cases where the securing of a warrant is reasonably practicable, it must be used,

was in the context of a search and seizure of a vehicle.⁹  And in McDonald v. United States, supra, the arrest upon which the search hinged was held unlawful and not to justify search and seizures in the home, not because the arrest was warrantless but because it grew out of an unlawful breaking into the home. Mr. Justice Jackson stated:

Having forced an entry without either a search warrant or an arrest warrant to justify it, the felonious character of their entry, it seems to me, followed every step of their journey inside the house and tainted its fruits with illegality. Cf. Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341; Taylor v. United States, 286 U.S. 1, 52 S. Ct. 466; Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367.

335 U.S. at 459, 69 S. Ct. at 195.

There thus appears in the law a difference, on the one hand, in what is considered reasonable and therefore necessary to justify a search and seizure in a home or occupied premises, from what, on the other hand, is reasonable and sufficient to justify a felony arrest in a public place. A warrant has not been required for the latter if there is probable cause, though it may have been practicable to obtain a warrant. This difference is not only reflected in decisional law. It gains support from statutes explicitly authorizing warrantless arrests on probable cause, statutes which have been relied upon by the Supreme Court, thus implicitly recognizing their constitutionality. We have already referred to 26 U.S.C. § 7607. We now refer also to our own Code:

The members of the Board of Commissioners, and of the police force, shall possess in every part of the District all of the common-law powers of constables * * *.

4 D.C.Code § 136, to be read with Carroll v. Parry, 48 App.D.C. 453, 459, where it is said:

At common law a constable could arrest without warrant one whom he had reason to suspect had committed a felony, and we are aware of no statute in modification of that rule in this jurisdiction.

And see 18 U.S.C. § 3052 which authorizes F.B.I. agents to arrest for felonies without a warrant where they have "reasonable grounds to believe that the person to be arrested has committed or is committing" a felony.

It is interesting to note in passing that the Fourth Amendment does not use the word "arrest." The Framers were primarily concerned with the security of persons, houses, papers and effects from searches, and seizures resulting from searches. This appears from the language of the Amendment. The main thrust was directed at the invasion of privacy through general warrants of assistance and lettres de cachet. See dissenting opinion of Mr. Justice Frankfurter in Harris v. United States, 331 U.S. 145, 155, 67 S. Ct. 1098, and of Mr. Justice Douglas in Draper v. United States, 358 U.S. 307, 314, 79 S. Ct. 329. It is not surprising, therefore, that historical support is advanced by the United States for the proposition that the common law, which, prior to the Bill of Rights, recognized the validity of a warrantless arrest for felony, even though not committed in the presence of the arresting official, was not intended by the Framers to be disturbed. And see Trupiano v. United States, 334 U.S. at 713, 68 S. Ct. 1229 (dissenting opinion of Chief Justice Vinson); United States v. Hall, 348 F.2d 837 (2d Cir.).

The protection of the Amendment, however, whatever may be thought to have been its primary thrust, is to be broadly applied. It embraces arrests, and the test it prescribes is reasonableness. We think this test, considered in light of history, decisional law and statutes, may not appropriately be held by us to depend upon a further test turning upon a decision as to the practicability of obtaining a warrant in case of an arrest in a public place for a felony on probable cause. Such an ingredient of reasonableness has never been adopted by the Supreme Court, and has been implicitly if not explicitly rejected there, by the courts in general throughout our history, and by Congress through enactment of statutes which, as we have seen, have been relied upon by the Supreme Court as though constitutional.

However, the practice of arresting without a warrant when it is practicable to obtain one is not to be encouraged. On the contrary. In a doubtful or marginal case of probable cause an arrest may be sustainable on a warrant where without one it would fall.¹⁰  And in any event the intervention whenever practicable of the independent judgment of a magistrate should be sought. We hold, however, that the Constitution did not require the securing of warrants for the arrests of appellants.

We come now to consider whether in the exercise of our supervisory jurisdiction we should adopt a rule, not required by the Fourth Amendment, that a felony arrest on probable cause, without a warrant, will not be deemed valid if it were practicable to obtain a warrant. We think the existing situation does not call for the adoption of such a rule. In so deciding we consider several factors. The conduct of the officers here, as Judge Pine stated on the remand, see note 3, supra, was not unreasonable or oppressive.¹¹  Cf. Lopez v. United States, 373 U.S. 427, 440, 83 S. Ct. 1381, 10 L. Ed. 2d 462. Probable cause for the arrests was strong, and when appellants' whereabouts was learned it was sensible for the officers to proceed immediately with the arrests. Moreover, Congressional enactments to which we have referred authorize warrantless arrests on probable cause. These are at least some deterrence to the adoption by us of an inconsistent rule. Additionally, we have Rule 5, Fed. R. Crim. P. It requires a person arrested to be taken before a magistrate without unnecessary delay for determination of the issue of probable cause.¹²  The Supreme Court has given life to this Rule by excluding at the trial evidence obtained by its violation. Compliance with Rule 5(a), with the accompanying exclusionary rule, tends to lessen any untoward consequences in this jurisdiction of warrantless arrests. This argues against the exercise now of our supervisory authority to invalidate the arrests in this case. That authority, of course, continues to remain available if we ever become persuaded that a practice of not getting warrants, even though practicable to do so, was resulting in a significant number of unreasonable arrests, inflicting an injustice upon the immediate victims as well as a strain upon the judicial machinery.

We have considered other contentions advanced and find no reversible error.

Affirmed.

J. SKELLY WRIGHT, Circuit Judge (concurring):

The Fourth Amendment, of course, protects the person against illegal arrest as well as property against unlawful search. Unfortunately, however, a different set of principles has evolved with respect to the protection of each. As to the search of property, with certain well defined exceptions, it is clearly the law that a search warrant must be obtained.¹  When a police officer has evidence which he deems to be probable cause for the search, he must place that evidence before a judicial officer who will make that judgment. The security of property is not left to the judgment of a police officer "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, supra Note 1, 333 U.S. at 14, 68 S. Ct. at 369.

With reference to the protection of persons from illegal arrest and subsequent search pursuant thereto, not only of their persons but of their immediate surroundings, it has been held that state law determines the validity of arrests without warrant. Johnson v. United States, supra Note 1, 333 U.S. at 15 n. 5, 68 S. Ct. 367; United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948). Most states follow the old common law principle that a police officer may make a valid arrest without a warrant for a misdemeanor or a felony committed in his presence and for a felony not committed in his presence where he has probable cause to believe that a felony has been committed and that the person arrested committed it.² 

Currently there appears to be a certain amount of uneasiness with this dichotomy between search and arrest. The Supreme Court, in Giordenello v. United States, 357 U.S. 480, 486, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958), held that the issuance of an arrest warrant under Rules 3 and 4, Fed. R. Crim. P., must be based on the judgment of "a neutral and detached magistrate" who, in determining probable cause, "should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime." In Jones v. United States, supra Note 1, 357 U.S. at 499-500, 78 S. Ct. at 1257, where the Government sought to justify the entry of a home to arrest without an arrest warrant, the Supreme Court stated:

"These contentions, if open to the Government here, would confront us with a grave constitutional question, namely, whether the forceful night-time entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment. * * *"³

This court has several times ruled on the Jones situation and has held that such arrests are illegal in the District of Columbia. Morrison v. United States, 104 U.S.App.D.C. 352, 357, 262 F.2d 449, 454 (1958); Accarino v. United States, 85 U.S.App.D.C. 394, 402, 179 F.2d 456, 464 (1949); cf. District of Columbia v. Little, 85 U.S.App.D.C. 242, 246, 178 F.2d 13, 17, 13 A.L.R.2d 954 (1949), affirmed on other grounds, 339 U.S. 1, 70 S. Ct. 468, 94 L. Ed. 599 (1950). And in Gatlin v. United States, 117 U.S.App.D.C. 123, 128 n. 10, 326 F.2d 666, 671 n. 10 (1963), we said: "The police here, as in Wong Sun [v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)], acted without an arrest warrant. Thus they failed to place their information before a `neutral and detached magistrate' who obviously is in a better position to determine probable cause than an `officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436 (1948). This failure alone, absent exceptional circumstances, may be sufficient to invalidate this arrest. [Citing cases.]"

Thus we see, as the dissents in Giordenello, 357 U.S. at 489-492, 78 S. Ct. 1245, and Jones, 357 U.S. at 500-503, 78 S. Ct. 1253, clearly indicate,⁴  the law with reference to the necessity of arrest warrants is in a state of flux with change possibly impending. This change would, of course, eliminate some of the problems which now arise from warrantless arrests followed by interrogation of the accused. For example, if probable cause for arrest were just established before a judicial officer, there would be no occasion for attempting to have the arrestee provide additional evidence of probable cause prior to being brought before the Commissioner. See Rule 5(c), Fed. R. Crim. P. Thus the disreputable and unconstitutional practice of arresting for investigation and interrogation would be discouraged.

The trial court here held that, after obtaining information amounting to what they considered probable cause for the arrest of appellants, it would have been practicable for the police to obtain arrest warrants. The trial court held further, however, that the arrests were legal without them.

In the present state of the law this ruling was undoubtedly correct. Nevertheless, I have no doubt that before too long personal liberty will be accorded the same protection under the Fourth Amendment as the ownership and possession of property now enjoy. See Barrett, Personal Rights, Property Rights, and the Fourth Amendment, in 1960 SUPREME COURT REVIEW 46.