finding special agent’s warrantless search of an attic unconstitutional and noting “officers of the law likewise have the duty, before undertaking a search, to heed the strictures and demands of the Fourth Amendment”
How later courts described this case
- finding special agent’s warrantless search of an attic unconstitutional and noting “officers of the law likewise have the duty, before undertaking a search, to heed the strictures and demands of the Fourth Amendment”
- both finding searches of premises illegal despite a claim that such a search was necessary to protect the officers' safety when they entered with only a warrant for an arrest
- fact that defendant was charged with firearms offense and known to have confederates did not justify search of upstairs rooms of house
- “condemning] the practice of producing prisoners in court who are dressed in clothes typical of jails or penal institutions, when this circumstance may arguably cause injury to a defendant’s case”
Written by the judges who cited it.
The opinion
DANAHER, Senior Circuit Judge
(dissenting from reversal of the conviction of Carter):
Judge Justice has written much with which I am quite in accord, but I think Carter’s conviction of theft should stand. In my view, the evidence of Carter’s guilt is so overwhelming that I need only set forth the salient facts applicable to the point at issue.
The burglary of the Arms Room early in the morning of June 29, 1971 was established beyond peradventure.
Government-owned M-14 rifles, shotguns, gas masks, weapons instruction manuals and other items of Government property had been stolen.
Military police making their rounds discovered that locks on the Arms Room had been cut and that a protective screen had been removed.
Officers then undertaking a survey found on a desk pad in the Arms Room adrawing 1 of a face underneath which was the legend “King Kong is Black.”
As the government officers were approaching the Arms Room area, two automobiles, rapidly driven, were seen as they left the Walter Reed grounds.
Within minutes thereafter as a time schedule was constructed through evidence at trial, the appellants Carter and Patterson reached a residence at 1318 Farragut Street where they were joined by two members of the Kokayi Family.
All four men then participated in removing from a blue Falcon, often driven by Carter, the rifles and other government property which had been stolen during the Arms Room burglary.
That property thereafter was transferred into the Farragut Street residence whence, from time to time during following weeks, Carter removed rifles for distribution by him to persons not disclosed at trial.
Carter, taking the stand, denied all connection with any of the events above mentioned, indeed he sought to establish an alibi which, clearly enough, the jury rejected as its verdict demonstrates.
As the trial proceeded, Carter, seated at a table right in front of the jury, had been drawing pictures of faces which have been referred to as “doodles”. The trial judge, on motion of the prosecution, ordered that those drawings be turned over to the Government and, in due course they were offered and were received in evidence.
Carter’s counsel had objected, contending that the prosecution should have requested a sample of Carter’s drawings during the months “prior to trial.” It is understandable that the judge regarded *687 that claim as specious when it was perfectly apparent that Carter’s drawings were executed during the trial and when the Government was not on notice that Carter was to sit there drawing pictures of faces. Moreover, if, as Carter’s counsel suggests, the judge could have entered a pre-trial order for the taking of samples of Carter’s art work, it may well seem that he certainly was in position to order the production of the very samples perfected as the trial proceeded. 2
Carter complains that the doodles had been received in evidence in rebuttal. But Carter had testified that he had taken no part whatever in the burglary. Surely receiving rebuttal evidence falls within the proper exercise of discretion by the presiding judge. United States v. Alaimo, 297 F.2d 604, 607 (CA 3, 1961), cert. denied, 369 U.S. 817 , 82 S.Ct. 829 , 7 L.Ed.2d 784 (1962).
When the judge was called upon to rule, he knew that already in evidence was the picture found in the Arms Room with its “King Kong is Black” legend. At issue was the possibility of a comparison between that Exhibit GX-18K and Carter’s drawings as prepared in the presence of the jury. Their authenticity and attribution to Carter had become clear beyond question. Undoubtedly the trial judge was well aware of our recognition that a “judge’s assessment of admissibility is vulnerable only if the error is clear,” United States v. Sutton, 138 U.S.App.D.C. 208 , 426 F.2d 1202, 1207 (1969).
Judge Robinson in Sutton, id., recognized that a reasonable mind might — but was not required to — regard an ultimate conclusion as established. In short, the weight to be given in such instances is for the jury which is considering a comparison of items of form and content of physical evidence.
So it was that the district judge overruled defense counsel’s objections, as he remarked “I think the jury can take a look at it and decide one way or the other”, observing further “I don’t think you need an expert.” 3
Surely Carter had executed his courtroom drawings under no form of compulsion. In Holt v. United States, 218 U.S. 245, 252 , 31 S.Ct. 2, 6 , 54 L.Ed. 1021 (1910) Mr. Justice Holmes took note of a question which “arose as to whether a blouse belonged to the prisoner.” He rejected as an “extravagant extension of the Fifth Amendment” a claim that the accused had been compelled to become a witness against himself. Certainly, Mr. Justice Holmes in his long previous experience on the bench in Massachusetts would have known that it is commonplace that comparisons be made between a known physical object already in evidence, and one traceable to the accused, as where the plaster cast of a footprint found at the scene of a crime has been received for matching purposes with a defendant’s shoe.
Mr. Justice Holmes clearly recognized that “the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral” compulsion to extort communications from him, not an *688 exclusion of his body as evidence when it may be material. Obviously as a sheerly practical matter, he was talking about physical evidence, enunciating a principle which has found wide, indeed expanding, acceptance in criminal trials. 4
The Holt opinion went on to say that the recognition of the
objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Moreover, we need not consider how far a court would go in compelling a man to exhibit himself. For when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent. Adams v. New York, 192 U.S. 585 , 24 Sup.Ct.Rep. 372 , 48 L.Ed. 575 . See Holt v. United States, supra, 218 U.S. at 253 , 31 S.Ct. at 6 .
Holt put on a blouse “and it fitted him”, Holt, supra, at 252 . Carter drew doodles in the courtroom. 5 They were competent evidence in possible aid of the purpose for which they were offered, depending upon what weight, if any, the jury might give to them, having in mind, e. g., their characteristics, their similitude and other possible bases for comparison with GX 18-K. (See note 1, supra).
I find myself satisfied that there was no reversible error in the ruling which permitted the introduction in evidence of Carter’s court-room “doodles”.
I realize that the judge had made reference at one point to “other crimes” in the course of his charge to the jury. However, the instructions must be viewed as a whole, not in terms of some isolated reference later to be challenged. The trial judge in detail had put before the jury the elements of the various offenses charged against the several accused. I suggest, respectfully, that there was no one in that courtroom, least of all the jury, who could have failed to know precisely what issues were involved and what proof was essential to predicate a verdict beyond a reasonable doubt. 6
The court reminded us in Cupp v. Naughten, 414 U.S. 141, 147 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973) that
a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.
It goes almost without saying at this late date that in considering the suffi *689 ciency of the evidence following a conviction, the Government is entitled to the benefit of all reasonable inferences. United States v. Mackin, 163 U.S.App.D.C. 427 , 502 F.2d 429, 441 , cert. denied, 419 U.S. 1052 , 95 S.Ct. 629 , 42 L.Ed.2d 647 (1974); Crawford v. United States, 126 U.S.App.D.C. 156 , 375 F.2d 332 (1967).
In my view, Carter’s conviction of theft, under all of the evidence so clearly establishing his guilt, should be affirmed. 7
. That drawing at trial became GX-18K and had been received without objection as had been testimony that scribblings found on the wall in the Arms Room read:
“War Pigs” or “Super War Pigs.”
Carter on brief has explained to us:
That this was a “political” crime was reflected in the facts that a military arsenal was burglarized and weapons were stolen. Additionally, epithets against the military were written on the walls (Tr. 567) (GX 18-K [the drawing and the slogan found on the Arms Room desk pad]) and in fact, the slogan “King Kong is Black” is associated with black, radical movements.
. It is so that the Government purported to rely upon 28 U.S.C. § 1731 , the handwriting statute, as a predicate for its offer of the doodles, but we are not here concerned with handwriting exemplars, cf. United States v. Ranta, 482 F.2d 1344, 1346 (8 CA 1973). Of course we are not bound by the prosecution’s reliance upon a ground not applicable to the facts disclosed by the record here.
. An FBI witness was given only an overnight opportunity to examine the exhibits but testified that in so short a time he had not been able to establish with definiteness a basis for certitude. Let us suppose, arguendo, that he could have done so and would have so testified, could it reasonably be contended that he should not have been permitted so to state? and that the Carter doodles thereupon might not properly be received in evidence for consideration by the jury in refutation of his claim?
Where no handwriting analysis had been made but authenticity had been sufficiently demonstrated, our court noted “it is immaterial that the authenticity requirement might have been better met by another method”. See United States v. Sutton, supra, 138 U.S.App.D.C. at 215, n.53 , 426 F.2d at 1209, n.53 .
. In different context but in furtherance of the principle to be perceived from Holt v. United States, supra, the Court increasingly has approved the use of physical evidence even to the extraction and chemical analysis of a defendant’s blood sample. In United States v. Dionisio, 410 U.S. 1, 6 , 93 S.Ct. 764 , 35 L.Ed.2d 67 (quoting from Schmerber v. California, 384 U.S. 757, 764 , 86 S.Ct. 1826, 1832 , 16 L.Ed.2d 908 ) the Court said:
[B]oth federal and state courts have usually held that [the privilege] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.
. Cf. United States v. Sutton, supra n.3 , 138 U.S.App.D.C. at 209 , 426 F.2d at 1207-1208 .
. As to Patterson, the jury returned a not guilty verdict on the substantive counts which were identical to those with which Carter had been charged. Patterson had offered substantial evidence in support of an alibi, with positive proof that at certain times covered by the indictment he had been in Texas, Mexico and Guatemala.
Incidentally, since I agree that we should reverse his conviction on a conspiracy count in No. 73-2057, we should also dismiss his appeal in United States v. Patterson, No. 74-1473, wherein he had raised a claim of prosecutorial impropriety on a point not likely to arise if he should again be tried.
. I had earlier submitted to my esteemed colleagues a proposed opinion dealing with the consolidated appeals of Carter, Patterson and Peterson. As to Peterson’s appeal in No. 73-1921, I have written separately an opinion which, upon concurrence by my colleagues, will come down as a companion case coincidentally with the release of the opinion by Judge Justice.
I concur in the treatment by the latter of the claims in Carter’s case insofar as he deals with the “Molotov cocktail” aspect of the counts of arson, possession of a Molotov cocktail, and second-degree burglary while armed.
I also concur in the opinion by Judge Justice and for the reasons stated, reversing the conviction of Patterson in No. 73-2057.