Before WILBUR K. MILLER, Chief Judge, and BAZELON and FAHY, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1961.CDC.30
Petition for Rehearing Denied April 10, 1961.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
Our appellants, Hair and Burroughs, were charged and convicted of housebreaking *fn1 and robbery, *fn2 and Burroughs was also charged and convicted of rape. *fn3 Their principal contention on these appeals is that the District Court erred in refusing to exclude certain evidence obtained by officers of the Metropolitan Police.
The police officers testified as follows: On January 4, 1960, they were called to investigate a report of a housebreaking, robbery and rape. The victim told them that three young men, each masked and armed, had entered her house, stolen a large amount of cash and a quantity of personal property, and that one of them had raped her. Some time between 5:00 and 9:00 p.m. that evening, from pictures at police headquarters, she identified Burroughs as her assailant and Hair as one of the robbers. She tentatively identified Reese Blakeney as the third robber. *fn4
At about 9:50 that evening, four officers converged upon Hair's residence. One officer was stationed at the back of the house to guard against escape, and the other three approached the front gate. Although they had neither an arrest nor a search warrant, their admitted purpose was to arrest Hair who, they had reason to believe, was at home. *fn5 When they were approximately seven or eight feet from the front door, a man opened the door, began to step out, and then turned and ran up the stairs towards the second floor. The officers, without giving notice of their authority or purpose in seeking entrance, immediately gave chase. They threw open the door, chased him up the stairs, and fired several shots at the man who then dived through the window and eluded the officer stationed behind the house. One of the officers then stated that he had recognized the man as Reese Blakeney whom he knew and whom the victim had identified as one of the robbers. He was subsequently apprehended and so identified by the victim.
While rushing out of Hair's home in pursuit of Blakeney, the officers passed an open door of a room in which they observed several items which fitted the descriptions of the goods stolen in the robbery. Based upon this observation, they procured the search warrant under which these goods were subsequently seized. *fn6 The trial court denied Hair's pre-trial efforts to suppress this evidence and overruled his objections to their admission at trial.
We shall deal first with appellant Hair's claim that the entry into his home was unlawful. If Hair is correct, the evidence seized under the warrant issued on the basis of observations derived from that entry was erroneously admitted. Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Somer v. United States, 2 Cir., 1943, 138 F.2d 790. Hair contends not only that the initial night-time entry without a warrant was unlawful but also that the manner of entry was illegal under the rule of Miller v. United States, 1958, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332; and our recent decision in Keiningham v. United States, 109 U.S.App.D.C. 272, 287 F.2d 126. We need not consider whether an entry without a warrant could have been valid since we hold that the manner of entry was illegal in any event and required exclusion of the evidence thereby observed.
The Government does not seriously dispute that Miller requires police officers who seek to invade the privacy of an individual's home to announce their authority and their purpose in demanding entrance before "barging in," *fn7 and that no such announcement was given here. It seeks to justify the absence of announcement, however, on the ground that it would have been a useless gesture because it was a virtual certainty that the officers' purpose was known.
In Miller the Supreme Court indicated that "it may be that, without an express announcement of purpose, the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture." 357 U.S. at page 310, 78 S. Ct. at page 1196. But rather than creating a "virtual certainty" of such knowledge, the Court considered the facts in Miller to be ambiguous. Nothing less can be fairly said of the circumstances disclosed by this record. In Miller, Federal officers knocked upon petitioner's door at about three in the morning. When asked who was there, one officer replied in a low voice, "police." Petitioner then opened the door on an attached chain and asked the officers what they wanted. Before they replied, he attempted to close the door. The officers then ripped the chain off the door and forced their way inside. If the attempted closing of the door after the officers had announced their presence and identity was ambiguous in Miller, Blakeney's opening and closing the door when the officers had made no announcement and were a distance of seven or eight feet away at the time cannot be otherwise characterized.
Nor does the Government's characterization of Blakeney's running up the stairs as flight change the picture. In Williams v. United States, 1960, 107 U.S.App.D.C. 276, 276 F.2d 522, the trial court refused to exclude evidence obtained from a dwelling without announcement of purpose on the ground that the appellant's running upstairs after seeing the officers was evidence of flight and made it virtually certain that further announcement would have been futile. We reversed per curiam citing Miller. Cf. Accarino v. United States, 1949, 85 U.S.App.D.C. 394, 179 F.2d 456. *fn8
Nor do we think that any claims of necessitious circumstances can justify the officers' entry without announcement in this case. Assuming arguendo that the Miller rule admits of such an exception, *fn9 Accarino v. United States (supra) answers the Government's contention that Blakeney's supposed "flight" necessitated instantaneous action. There, as here, the Government pointed to such conduct as constituting the need for entry without a warrant or announcement. In that case we said the conduct could not be considered flight which justified unannounced and warrantless intrusion since "the ...