# Smith v. Whitehead

> District of Columbia Court of Appeals · January 5, 1982 · 436 A.2d 339

URL: https://www.frixlaw.com/law-library/cases/9646705

## Case

- **Full name:** Michael K. SMITH and Stephen E. Granville, Appellants, v. Noble A. WHITEHEAD and Jo Ann Haltiwanger, Appellees
- **Court:** District of Columbia Court of Appeals
- **Decided:** January 5, 1982
- **Citations:** 436 A.2d 339
- **Precedential status:** Published
- **Opinion:** Dissent by Harris
- **Judges:** Newman, Kelly, Harris, Kern, Nebeker, MacK, Ferren, Pryor, Belson
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

HARRIS, Associate Judge,
dissenting:
If this case were a sports event, the lead paragraph describing it might read as follows:
The criminal element today scored a startling victory over a law enforcement team. Juries now are free to decide whether police officers executing search warrants committed the tort of conversion by taking items of property into official custody, and assess judgments— including punitive damages — if they don’t approve of what the officers did.
The reporting of sports, of course, is but a form of history. The majority’s opinion, however, establishes precedent. That precedent, in my view, is ominous. In dissenting from an opinion which I consider to be wrong in many respects, I echo the frustration expressed by Justice BRENNAN in his dissenting opinion in McGautha v. California, 402 U.S. 183, 249 , 91 S.Ct. 1454, 1488 , 28 L.Ed.2d 711 (1971), in which he stated: “In my view the Court errs at all points from its premises to its conclusions.” That statement, as strong as it is, is inadequate for this case. At the very least, appellate judges out to be willing to set forth the relevant facts with objectivity. Even that modest goal is not met here.
I
The majority opinion’s statement of the facts is notable for its omissions, making it necessary to fill in the gaps. The majority correctly states that appellants Smith and *353 Granville are police officers who received information from a reliable informant that appellee Whitehead was dealing in heroin in his apartment, and that the informant had personal knowledge that Whitehead would exchange heroin for either cash or valuable items of personal property. 1 However, the majority omits the fact that the informant identified for the officers specific types of property that Whitehead would accept in exchange for drugs, namely, televisions, radios, stereo equipment, “or anything that would be movable property.” This omission allows the majority to draw its conclusion that the officers had no reason to believe that the items seized were evidence of criminal activity. In fact, there was “a logical nexus ... between the items in question and [Whitehead’s] criminal behavior.” United States v. Williams, 623 F.2d 535, 536 (8th Cir.), cert. denied, 449 U.S. 954 , 101 S.Ct. 359 , 66 L.Ed.2d 218 (1980).
Moreover, based on what they had been told by the informant, the officers carefully evaluated which items to seize and which to leave behind. Illustratively, a vacuum cleaner — which appellee Haltiwanger claimed to own — was not seized. Detective Burke, who was at the scene, discussed taking it with Sergeant Clinton Stone, who directed the search. They determined that it was a common household item. Additionally, “[t]he reason the property was not taken, partially, was that we felt that it was probably not the type of property someone would use to pawn for the purchase of drugs.” In contrast, Burke observed that a sewing machine is the type of item that someone might pawn. 2
In its description of the search, the majority correctly notes that the officers, upon entering the apartment found Whitehead standing in the bathroom. A packet of heroin lay near the toilet, and a loaded gun was found in the bathtub. The majority also mentions — as though a heroin dealer’s response to such a question should be binding on the police — that at that point Whitehead told the officers that they had recovered all the narcotics. The majority fails to state that Sergeant Stone then ordered a thorough search of the premises, and that the further search turned up additional heroin and related narcotics paraphernalia. 3
The majority stays faithful to appellees’ self-serving version of the incident throughout, including their testimony as to the manner in which the search supposedly was conducted. The opinion completely ignores the testimony of every officer on the scene which disputed appellees’ characterization of the events. Moreover, the majority makes no reference to the severe impeach *354 ment of appellees. Whitehead was impeached with prior convictions of false pretenses and narcotics violations; Halti-wanger was impeached with prior convictions of narcotics possession, unlawful entry, possession of implements of a crime, possession of stolen mail, uttering, and violation of probation.
It is clear that the majority thinks little of the officers’ reasons for seizing the particular items which they did in the course of the search. The opinion is quite one-sided on the facts. A number of factors led Sergeant Stone to believe that the property should be seized as likely evidence of narcotics dealing, particularly: (1) the informant’s notification that Whitehead was accepting such items of personal property in exchange for heroin; (2) Whitehead’s inability to give Stone a satisfactory explanation or proof of lawful ownership of the goods at the time of the search and seizure; 4 (3) the ready observation by Stone that some of the items seized were duplica-tive of other items found in the apartment; and (4) an apparent incongruity between the nature and abundance of the items seized and the relative overall modesty of most other aspects of appellees’ living quarters. Based upon his seasoned appraisal of these factors (he had ten years’ police experience), Sergeant Stone ordered the times to be taken down to the police truck. It is unclear which officers actually carried the property downstairs (Detective Burke was listed on police records as the seizing officer at the scene); appellant Smith acknowledges having helped carry some of it. The items were taken directly to the Sixth District headquarters, and later were turned over to the Metropolitan Police Department’s property clerk, who still retains possession thereof.
Appellee Whitehead was convicted of possession of narcotics with intent to distribute and receiving stolen property (the gun). He was sentenced to one year’s imprisonment. After his release, he sought to have the property clerk return the seized property to him. A hearing was conducted at Whitehead’s request. The property clerk, however, refused to return the property to Whitehead absent “satisfactory evidence” of lawful ownership. See D.C. Code 1973, § 4r-156(a). When Whitehead was unable to provide such evidence, the property clerk continued the hearing to permit Whitehead to secure proof of ownership. 5 At the second hearing, Whitehead again failed to produce proof of ownership of any of the items. 6 Consequently, the property clerk retained custody over the items. Whitehead and appellee Haltiwanger then initiat *355 ed a civil suit against the two appellant police officers for conversion. 7
II
In its lengthy effort to justify its conclusion that the actions of appellants constituted actionable conversion, the majority acknowledges but attaches no significance to one substantial error committed by the trial court (see ante at p. 348 n.4) and overlooks another error of law which the trial court committed. 8 It submitted to the jury as questions of fact the issues of (1) whether appellants lawfully had seized the various items of property, and (2) whether actionable conversion had taken place. The trial court in this case should have concluded that the officers’ conduct in seizing items from appellees’ apartment in the course of a search pursuant to a valid warrant was not conversion as a matter of law. The issue never should have gone to the jury.
In order to establish the tort of conversion, a plaintiff must show an unlawful exercise of ownership, dominion, or control over the plaintiff’s personal property in denial or repudiation of the plaintiff’s right to such property. See Blanken v. Harris, Upham & Co., D.C.App., 359 A.2d 281, 283 (1976); Shea v. Fridley, D.C.Mun.App., 123 A.2d 358, 361 (1956). Such an interference must be so substantial as to justify treatment as, in effect, a forced judicial sale of the property to the converter. See Horne v. Francis I. duPont & Co., 428 F.Supp. 1271, 1275 (D.D.C.1977); W. Prosser, The Law of Torts § 15, at 80-81 (4th ed. 1971). Thus an interference with the property of another cannot amount to a conversion unless that interference is unlawful.
I need not deal with the issue of whether the seizures in this case were constitutionally permissible when measured against the customary Fourth Amendment standards. 9 Even assuming arguendo that they were beyond the scope of the warrant, what took place was not conversion as a matter of law. At no time did appellants exercise ownership or dominion and control for their own benefit of the property seized from appel-lees. As officers seizing items pursuant to a search warrant, they acted on behalf of *356 the court which authorized the warrant. “The seizing officer claims no right in or to the property, or in or to its possession, save and except as the court may find use for it.” Wilson v. United States, D.C.App., 424 A.2d 130, 134 (1980), quoting People v. Superior Court, 28 Cal.App.3d 600, 609 , 104 Cal.Rptr. 876, 883 (1972), quoting in turn Gershenhorn v. Superior Court, 227 Cal.App.2d 361, 366 , 38 Cal.Rptr. 576, 579 (1964). Accordingly, it is totally inappropriate to impose the legal fiction of a “forced judicial sale” on appellants whose control, if any, over the property was momentary and who never retained it for any purpose. 10 Nor did appellants ever have the requisite intent to support a finding of conversion, that is, the intent to exercise ownership, dominion, or control over the property. See Prosser, supra, at 83. Rather, they intended merely to seize evidence on behalf of the court for possible use in a criminal prosecution. That intent supplies the legal justification which takes their actions outside the scope of tortious conversion. 11 Since it is the trial court’s function as a preliminary matter to determine whether the facts are sufficient in a given case to permit the jury to conclude that a defendant’s conduct constituted an act of conversion, Mustola v. Toddy, 253 Or. 658, 662 , 456 P.2d 1004, 1006 (1969), the trial court’s failure in this instance to conclude that conversion had not occurred as a matter of law was erroneous.
Ill
With respect to the lawfulness of the seizure, the trial court instructed the jury, in pertinent part, as follows:
As a matter of law, a police officer is privileged to seize all of the property which is covered by the language of a duly authorized search warrant. A police officer is also entitled to seize other property which is discovered during a lawful search, if the property is evidence which has a connection or nexus to criminal behavior as an instrumentality of the crime, the fruit of crime such as stolen goods, a weapon by which escape could be affected, and if the property is inadvertently discovered.
* * * * * *
If you find that the seizure was not lawful, the plaintiff has proved by a preponderance of the evidence that it was not lawful, you must go on to determine whether the officers, the defendants in this case, have proved by a preponderance of the evidence that they acted in good faith with the reasonable belief that their conduct was lawful, either under the warrant or under circumstances in which they inadvertently discovered evidence during the execution of the warrant. * * * * * *
If you find these officers inadvertently discovered evidence with a nexus to criminal activity during the execution of a valid search warrant, your duty would be at an end and you would return a verdict for each of the defendants.
If, however, you find that the plaintiff has proved by a preponderance of the evidence that the seizure was not unlawful, you would go on to consider whether the officers acted in good faith with a reasonable belief that their conduct was lawful.
The trial court thus correctly perceived that a determination of appellants’ potential liability necessitated a two-tiered analysis: (1) whether the seizure of the items *357 was lawful and (2) if not, whether the officers acted in good faith with a reasonable belief that the seizure was lawful. The court also correctly noted that if the officers’ conduct were determined to be lawful, then that would end the matter. The trial judge’s misstep was her failure to recognize that the threshold determination — whether appellants acted lawfully in executing the warrant — was for her to make.
In the absence of any factual dispute of significance between the parties, the validity of the search — that is, whether the items properly were seized pursuant to the search warrant or whether there was probable cause to seize them in any event — was a question of law for the court and not for the jury to determine. See Prieto v. May Department Stores Co., D.C.App., 216 A.2d 577, 578 (1966); State v. Miller, 112 Ariz. 95 , 537 P.2d 965, 967-68 (1975) (en banc); State v. Spillars, 280 N.C. 341, 351 , 185 S.E.2d 881, 888 (1972); State v. Williams, 157 Conn. 114, 117 , 249 A.2d 245, 247 (1968), cert. denied, 395 U.S. 927 , 89 S.Ct. 1783 , 23 L.Ed.2d 244 (1969); People v. Sherman, 251 Cal.App.2d 849, 852 , 60 Cal.Rptr. 198, 200 (1967). 12
The trial court erred in this case, therefore, in allowing the jury to determine whether appellants’ actions in seizing the goods during the execution of the search warrant were constitutionally impermissible. That determination was a legal one to have been made by the trial court, and only if it were resolved against the officers should the issues of good faith and reasonableness have been submitted to the jury as questions of fact. As I have noted, my colleagues in the majority share this view (see ante, at 348 n.4), but they cavalierly substitute their judgment on the seizure issue for the one which erroneously was submitted to and made by the jury. The majority then treats the rest of the case as intact and unaffected by the error, notwithstanding the fact that the jury’s improper consideration of the narrow legal issue undoubtedly was tainted by the inflammatory testimony of appellees — all of which was irrelevant to the legal question — as to the manner in which they claimed the search was conducted. I cannot share in that reasoning.
IV
Finally, I am troubled by the majority opinion’s mixing of the quite different concepts of the suppression of evidence and an act of conversion. The majority opinion reads in major part as though this were an exclusionary rule case rather than a conversion case. With its heavy reliance on suppression cases, the majority opinion portends the ominous result that when a motion to suppress evidence is granted on the ground that a search was conducted unlawfully, that search could give rise to an action in conversion against the officers who conducted it. 13 That result could have a devastating impact on the ability — and even the willingness — of officers to function effectively.
For all of the foregoing reasons, I dissent from the majority opinion, which if permitted to stand could have a devastating impact on law enforcement in this jurisdiction. Because the facts in this case do not support a finding that conversion occurred as a matter of law, I would reverse and remand with instructions to enter judgment in favor of appellants.
Before: NEWMAN, Chief Judge; KELLY, KERN, NEBEKER, HARRIS, MACK, FERREN, PRYOR, and BELSON, Associate Judges.
ORDER
On consideration of appellants’ petition for rehearing and/or rehearing en banc and of appellees’ opposition filed with respect thereto, it is
ORDERED that appellants’ petition for rehearing is denied; it appearing that the majority of the judges of this Court has *358 voted to grant appellants’ petition for rehearing en banc, it is
FURTHER ORDERED that the aforesaid petition for rehearing en banc be granted and that the opinions and judgment of September 10,1981, be vacated. It is
FURTHER ORDERED that the Clerk shall schedule this matter for argument before the Court sitting en banc as soon as the business of the Court permits. Counsel are hereby directed to provide ten copies of the briefs heretofore filed to the Clerk on or before Monday, February 1, 1982.
PER CURIAM.
.As noted, the affidavit in support of the search warrant did not include the informant’s tip that appellee Whitehead would accept personal property in return for heroin. The officers decided not to include this information in their affidavit in order to protect the identity of the informant. The officers testified that the omission of such information from an affidavit is not uncommon as long as the affidavit otherwise supports a determination of probable cause. Officer Granville stated that if the affidavit had included that information, “it would tend to pin the informant down. Like, for instance, if there was only one person taking property to the premises, then, naturally, if it was incorporated into the affidavit and the person read the affidavit, then that would be known.” It long has been recognized that an informant is entitled to the protection of anonymity so long as the magistrate issuing the warrant is satisfied that probable cause exists. See McCray v. Illinois, 386 U.S. 300, 311 , 87 S.Ct. 1056, 1062 , 18 L.Ed.2d 62 (1967); United States v. Ventresca, 380 U.S. 102, 108 , 85 S.Ct. 741, 745 , 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 114 , 84 S.Ct. 1509, 1513 , 12 L.Ed.2d 723 (1964).
The very existence of the search warrant distinguishes this case from cases such as Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), upon which the majority places such reliance.
. In this connection, I find it peculiar that the majority places emphasis on the fact that none of the items seized was listed on the police “hot sheet” of stolen goods. This isolated fact has virtually no significance, since the police were looking not for stolen goods but for evidence of narcotics transactions.
. Since the items sought (narcotics and paraphernalia) were small, the search was no more intrusive then necessary. “[Tjhey might have been hidden in any area of the residence where the items that were in fact seized were found.” Vorhauer v. United States, 426 F.Supp. 839, 842 (E.D.Pa.1976).
. For example, Stone stated: “I asked Mr. Whitehead who the movie projector belonged to in the living room, and he informed me that a guy brought it there and dropped it off for him to hold. I asked him who the man was and he said he didn’t know. I asked him where the man lived, he said he didn’t know. I asked him who the television belonged to in the living room, he said he didn’t know.”
. Property Clerk Douglas Cissel suggested a number of ways in which Whitehead could establish ownership, such as providing can-celled checks, microfilmed bank records, receipts, or other verification from stores where he had purchased the items. As to items which Whitehead claimed that he had received as gifts, Cissel stated that he would accept notarized statements from persons indicating that they had given the items to him as gifts. “It doesn’t have to say the serial numbers, but such and such a date during such and such a period in the year June 1972 or ’73 or ’71. ‘I gave Noble Whitehead one color t.v. model number, make Zenith, for his birthday.’ ” At trial, Cissel emphasized that his requirements for proof of ownership are not stringent. “When something is taken as suspected proceeds of a crime, all I require is some type of common sense proof. If they say a friend gave it to them, all I want is that friend to say, ‘Yes, I gave it to him,’ that’s all.”
.Sometime between the property clerk hearings and the trial on appellees’ conversion complaint, Whitehead located a receipt for one of the movie projectors, which he produced at trial. He stated, however, that he had not requested another hearing before the property clerk in order to produce the receipt and recover the projector. Additionally, Rozinni Russel, a friend of Whitehead’s, testified at trial that he had given Whitehead a 35-millimeter camera and a tripod. Whitehead had not asked Russel to testify to that effect before the property clerk at the time of those hearings. Asked if he had a receipt for the purchase of those items, Russel stated that he once had a receipt but that he had tom it up about a week before the trial.
. Neither appellee aggressively pursued the customary remedies for obtaining the return of seized property. Appellee Haltiwanger never applied to the property clerk for the return of her claimed property. She testified that she had expected Whitehead to take care of this for her since she was incarcerated on charges of possession of stolen mail, uttering, and violation of probation at the time Whitehead instituted his proceedings before the property clerk. Although entitled to de novo review by the trial court of the property clerk’s determination with respect to the property, see Carroll v. E. Heidenheimer, Inc., D.C.Mun.App., 44 A.2d 71 (1945), appellee Whitehead eschewed such a remedy in favor of suing Officers Smith and Granville.
. There is yet another ground for reversal in this case which the majority ignores. While I do not deal with the issue of the propriety of punitive damages as awarded by the jury upon finding appellants to be liable, I do not consider malice to be a relevant factor in reviewing the actions of police officers acting within the scope of their official duty in any event. Rather, I agree with the jurist who noted in another context: “[T]he law regards the doing of the duty and not the motives from or under which it is done .... Does an action lie against a man for maliciously doing his duty? I am of the opinion that it does not.” Spalding v. Vilas, 161 U.S. 483, 496 , 16 S.Ct. 631, 636 , 40 L.Ed. 780 (1896), quoting Dawkins v. Lord Paulet, L.R. 5 Q.B. 94, 114. In any event, the evidence admitted by the court principally to prove malice — that is, the testimony by appel-lee Haltiwanger that she was propositioned by appellant Smith on occasions subsequent to the search — was totally immaterial with respect to motive at the time of the search. At no time did the trial court weigh the probative value of the evidence (obviously none) against its clearly prejudicial nature. See Punch v. United States, D.C.App., 377 A.2d 1353, 1358 (1977), cert. denied, 435 U.S. 955 , 98 S.Ct. 1586 , 55 L.Ed.2d 806 (1978). The admission of the testimony, over repeated objection, was therefore an abuse of discretion which calls for reversal.
.I do note, however, that as best I can determine from the record on appeal, the validity of the search has not been challenged successfully. Cf. Curley v. Bryan, 362 F.Supp. 48, 51-52 (D.S.C.1973) (where alleged illegal search had never been found to be illegal by any court, and the only court which had ruled on the issue at least inferentially found the search to be proper, and where prisoners’ convictions stood undisturbed, the prisoners were not entitled to recover monetary damages from the officers who conducted the search).
. The seized items were turned over immediately to the property clerk of the Metropolitan Police Department, who is insulated by law from liability in damages for his actions with respect thereto. See D.C. Code 1973, § 4-156(c). As noted, appellees failed to exhaust their civil remedies for securing the return of the property. See note 7, supra.
. I agree with the court in Mustola v. Toddy, 253 Or. 658, 668 , 456 P.2d 1004, 1009 (1969), that the scope of the tort of conversion should be confined to its narrowest possible limits when a police officer in an emergency situation exercises control over an arrestee’s property. An emergency situation exists whenever, as a practical matter, there is a danger that suspected evidence of a crime may be moved or destroyed (a very real possibility where, as here, not all of the parties at the scene of the crime are arrested) or where investigation permissibly leads officers to evidence in plain view. See Hoopes, The Proposed Good Faith Test for Fourth Amendment Exclusion Compared to the § 1983 Good Faith Defense: Problems and Prospects, 20 Ariz.L.Rev. 915, 937 (1978).
. The pertinent facts in this case are not in dispute. The only factual discrepancy regarding the alleged conversion involves the question of whether both appellants actually took part in carrying the property out of the apartment to the police vehicle. This issue has no bearing on the lawfulness of the seizure.
. Even that urgent concern may be unduly optimistic, since it does not appear that a motion to suppress was granted in this case (and I see no conceivable basis for such a ruling).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646705. Public record. Not legal advice.