Crews v. United States

FICKLING, Associate Judge,

dissenting:

The issue presented by this case is whether the in-court identification was the direct “fruit” of an illegal, sham arrest of appellant and, as such, should have been suppressed. The majority is of the opinion that the arrest here was not a sham and therefore affirms the ruling below. I disagree.

The trial court found, and the government conceded during the suppression hearing, that appellant was under arrest when he was transported to Park Police Headquarters for the picture-taking procedure. As this court noted in District of Columbia v. Perry, D.C.App., 215 A.2d 845, 847 (1966), quoting Price v. United States, D.C.Mun.App., 119 A.2d 718, 719 (1956), “the essence of an arrest ‘is a restriction of the right of locomotion or a restraint of the person.’ ”

The arrest of appellant as a suspected truant was a patent sham, designed solely to obtain identification evidence of his possible involvement in unrelated crimes, for which there existed no probable cause. 1 Such sham or pretextual arrests consistently have been condemned. See, e. g., Hill v. United States, 135 U.S.App.D.C. 233 , 418 F.2d 449 (1968); Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir. 1968); United States v. Harris, 321 F.2d 739 (6th Cir. 1963); Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961); Charles v. United States 278 F.2d 386 (9th Cir. 1960) McKnight v. United States, 87 U.S.App.D.C. 151 , 183 F.2d 977 (1950). A court should not indulge in “ex post facto extrapolations of all crimes that might have been charged on a given set of facts at the moment of arrest . . . [for] such an exercise might permit an arrest that was a sham or fraud at the outset, really unrelated to the crime for which *1074 probable cause to arrest was actually present to 'be retroactively validated.” United States v. Martinez, 465 F.2d 79, 81-82 (2d Cir. 1972), quoting United States v. Atkinson, 450 F.2d 835, 838 (5th Cir. 1971). Nor will such an arrest be valid when it was merely a ploy or pretext used to afford police the time and opportunity to investigate and amass facts sufficient to constitute probable cause. Martinez, supra; Atkinson, supra; Mills v. Wainwright, 415 F.2d 787 (5th Cir. 1969); Staples v. United States, 320 F.2d 817 (5th Cir. 1963). .

The majority relies on Ker v. Illinois, 119 U.S. 436 , 7 S.Ct. 225 , 30 L.Ed. 421 (1886), and Frisbie v. Collins, 342 U.S. 519 , 72 S.Ct. 509 , 96 L.Ed. 541 (1952). For years, these two cases have been the crux of a doctrine to the effect that the government’s power to prosecute a defendant is not impaired by the illegality of the method by which it acquires control over him. Due process was satisfied so long as the defendant had “a fair trial in accordance with constitutional procedural safeguards.” Frisbie, supra at 522 , 72 S.Ct. at 512 ; see Ker, supra, 119 U.S. at 440 , 7 S.Ct. 225 . However, since Frisbie, the Court has made an effort to deter police misconduct. Due process has been extended to exclude the fruits of the government’s own deliberate and unnecessary lawlessness in bringing an accused to trial. See United States v. Russell, 411 U.S. 423, 430-31 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973); Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966); Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963); Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961); Silverman v. United States, 365 U.S. 505 , 81 S.Ct. 679 , 5 L.Ed.2d 734 (1961). Moreover, in recent years the Ker-Frisbie rule has been strongly criticized. See United States v. Toscanino, 500 F.2d 267, 272 (2d Cir. 1974); United States v. Edmons, 432 F.2d 577, 583 (2d Cir. 1970); Government of Virgin Islands v. Ortiz, 427 F.2d 1043, 1045 n. 2 (3d Cir. 1970).

I find I cannot agree with the position taken by the majority that the admissibility of the in-court identification was controlled by the “independent basis” test. The Supreme Court’s stated concern in United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), was the reliability of in-court identifications which are based upon suggestive out-of-court identifications. This differs greatly from the gravamen of the Court’s decision in Wong Sun v. United States, supra which was the deterrence of improper government activity by the exclusion of otherwise reliable evidence. The question before us here is not whether the in-court identification was reliable, but whether it was the fruit of the illegal, sham arrest and, as such, should have been excluded notwithstanding reliability.

The instant case differs greatly from most that have dealt with the use of the “fruits” of illegal arrests. The arrest here violated the Fourth Amendment not so much because the police officer lacked probable cause, but because he deliberately seized appellant on a mere pretext for the purpose of obtaining his photograph and displaying it to the victims of the robberies. See United States v. Edmons, supra. Hence, in my view the majority’s reliance on Bond v. United States, D.C.App., 310 A.2d 221 (1973), and Payne v. United States, 111 U.S.App.D.C. 94 , 294 F.2d 723 , cert. denied, 368 U.S. 883 , 82 S.Ct. 131 , 7 L.Ed.2d 83 (1961), is misplaced since neither of those cases involved a sham or pre-textual arrest.

The Supreme Court has prescribed that our inquiry in cases where a primary illegality has been demonstrated must be

whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguisha *1075 ble to be purged of the primary taint. [Wong Sun v. United States, supra, 371 U.S. at 488 , 83 S.Ct. at 417 quoting Maguire, Evidence of Guilt, 221 (1959).]

Here, the illegal arrest of appellant for the sole purpose of obtaining and exhibiting his photograph to the robbery victims, with a view toward having any resulting identification duplicated at trial, is clearly an exploitation of the “primary illegality.” United States v. Edmons, supra. See also Davis v. Mississippi, 394 U.S. 721 , 89 S.Ct. 1394 , 22 L.Ed.2d 676 (1969); Bynum v. United States, 107 U.S.App.D.C. 109 , 274 F.2d 767 (1960). Such an illegal arrest made for the precise purpose of securing identifications that otherwise would not have been obtained epitomizes, in my view, the evils sought to be prevented' by the exclusionary rule.

Generally, the exclusionary rule has been applied in cases where the primary illegality is somehow connected with the evidence-gathering or investigative process. See, e. g., United States v. Wade, supra; Wong Sun v. United States, supra; Nardone v. United States, 308 U.S. 338 , 60 S. Ct. 266 , 84 L.Ed. 307 (1939); Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920). It is within this context that the Second Circuit Court of Appeals explained in United States v. Edmons, supra at 584, that the government “exploits” an illegal arrest when it obtains a conviction based on evidence gathered pursuant to its unconstitutional act.

The majority’s attempt to distinguish Edmons from the instant case is tenuous at best. The fact that 50 law enforcement officers were involved in Edmons , as opposed to 2 officers here, is of no moment. As in Edmons , the officers here knew only that the suspect was “young and black.” Moreover, the arrests in both cases were mere pretexts made in bad faith, without probable cause, and ostensibly for truancy here and Selective Service Act violations 2 in Edmons , but in reality for the purpose of obtaining identification evidence in unrelated crimes. 3

As the Supreme Court has instructed, the exclusionary rule is calculated to deter. Its function is “to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217 , 80 S.Ct. 1437, 1444 , 4 L.Ed.2d 1669 (1960). There is also a second function of the rule, and that is the “imperative of judicial integrity.” Elkins, supra at 222 , 80 S.Ct. 1437 . See also United States v. Peltier, 422 U.S. 531, 536 , 95 S.Ct. 2313 , 45 L.Ed.2d 374 (1975). The mainstay of the judicial integrity theory is that courts should not act as “accomplices in the willful disobedience of [the] Constitution.” Elkins, supra, 364 U. S. at 223 , 80 S.Ct. at 1447 . In other words, by suppressing evidence which has been illegally seized a court’s integrity remains intact by its refusal to perpetuate a violation of the constitutional rights of an accused.

Accordingly for the above reasons, I dissent.

. The trial count properly found that there was no probable cause to arrest appellant for robbery where there was a police lookout for a Negro male, age 15-18, with a slender build and light complexion, and appellant, a Negro male, age 16, was seen 3 days after the last reported incident standing in a public place at midday in a nonconspicuous manner. See Gatlin v. United States, 117 U.S.App.D.C. 123 , 826 F.2d 666 (1963).

. Defendants were charged with failure to have their Selective Service cards in their possession in violation of 18 U.S.C.A. § 111 ; Military Selective Service Act, § 12(b) (6), 50 U.S.C.A.App. § 462(b)(6).

. During a pretrial suppression hearing in this case, the arresting police officer acknowledged pthat he considered appellant a potential suspect in the robbery cases from the moment he first saw him. He tried to explain that photographing was “customary procedure” in truancy cases. However, that testimony was flatly contradicted by the robbery squad detective who took the photographs and acknowledged that his real purpose was to obtain pictures to show to complaining witnesses in the robbery cases.