United States v. Willie Robinson, Jr.

ON REHEARING EN BANC

McGOWAN, Circuit Judge:

This appeal from a jury conviction for federal narcotics offenses (26 U.S.C. § 4704(a) and 21 U.S.C. § 174) raises questions under the Fourth Amendment, as difficult as they are important, of the permissible scope of the search of the person incident to a lawful arrest. Heard and decided initially by a division of this court on a ground not raised in the trial court, the case was reheard en banc. Hampered by the fact that the taking of evidence in the District Court was not focused upon the scope issue first raised here, we have concluded that the resolution of that issue must abide a remand in which that can be done. We address ourselves initially, however, to two questions, raised in both the District Court and here, which were pretermitted by the division. Finding against appellant on the merits of both, the remand we make is in order.

I

A pretrial motion to suppress evidence, in the form of narcotics taken from the possession of appellant at the time of his arrest, was the subject of an evidentiary hearing out of the presence of the jury. In that hearing Officer Jenks of the Metropolitan Police Department testified that at 12:45 A.M. on April 19, 1968, he stopped a 1965 Cadillac at 9th and U Streets, N. W., for what he described as a “routine spot check.” Appellant, the driver of the Cadillac, was asked to exhibit his driver’s permit and the vehicle registration. Appellant, according to Jenks, handed over a temporary driver’s permit, the registration, and a selective service classification card. Officer Jenks made notes of the first and third of these items, remarking in the process a dis *1217 crepancy in the birth dates on each, that on the driver’s permit being 1938 and, on the draft card, 1927. Appellant was then permitted to go on his way. Officer Jenks later checked traffic records and discovered that appellant’s driver’s license had been revoked, and that the temporary permit had been issued in response to an application which represented the date of birth to be 1938.

Four days later, on April 23, Officer Jenks again encountered appellant, operating the same Cadillac. Officer Jenks stopped him with, as he put it, “the intention of arresting [appellant] for operating after revocation and obtaining a permit by misrepresentation.” When appellant produced the same temporary permit as before, he was told that “he was under arrest for operating after revocation.” Officer Jenks then testified:

“I advised him of his rights, and searched him immediately in front of me. I noticed in his left coat pocket— breast pocket of his coat, a wadded up package — cigarette package. I opened it. Inside was found 14 gelatin capsules.”

After first identifying the cigarette package with the 14 capsules in it as the property taken by him from appellant, Officer Jenks concluded his direct testimony with an account of what he did with the capsules after their seizure. He placed his initials on the package, together with the date and time. The next morning he turned it over to Officer Gor-ney of the Narcotics Squad, having kept it in his locker in the interim, to which locker he had the only key. Officer Gor-ney made a field test in his presence, and then placed the cigarette package in a cream-colored envelope which he sealed with scotch tape, placing his initials and the date and time on that envelope, as did also Officer Jenks. Officer Jenks then observed Officer Gorney proceeding with his paper work, which included writing on what is known as a locked sealed envelope.

Officer Jenks was cross-examined briefly on (1) the turning over of the draft card by appellant during the original stop, and (2) Jenks’ subsequent examination of the traffic records. Mrs. Ewing, an enforcement clerk in the Department of Motor Vehicles, then testified, without cross-examination, as to what the records of the Department showed. The third witness was Mr. Steele, a Government chemist. He testified that he received a locked sealed envelope from Officer Gorney on April 29, 1968. He put his initials and Gorney’s name on the outside, and also a laboratory control number. The envelope was sealed and intact upon its receipt by him, and there was no indication that it had been tampered with. Upon opening in the laboratory, a smaller envelope sealed with scotch tape was found inside; and inside that was a cigarette package containing 14 capsules. Gorney’s and Jenks’ initials were in the places testified to by them. The capsules, on being chemically analyzed, were found to contain heroin. They remained in the laboratory vault until brought by Steele to the courtroom. Steele’s brief cross-examination was largely confined to signs of tampering, but his answers were as on direct.

Appellant took the stand and testified on direct examination only that, during the original stop, Jenks had asked to see his draft card after he had produced his driver’s permit and the vehicle registration. He admitted on cross-examination that he had misrepresented his age in seeking the second driver’s permit.

With the taking of evidence so completed on the motion to suppress, appellant’s trial counsel asserted two reasons why the motion should be granted. One was that the purposes of the routine spot check had been exhausted when appellant exhibited to Officer Jenks his driver’s permit and registration, and that Jenks had no right to require appellant to exhibit his draft card. It was urged that, since it was the age discrepancy revealed by the draft card which aroused Jenks’ suspicions, everything that followed, including the discovery of the narcotics on the occasion of the later arrest, was the forbidden fruit of this *1218 initial illegal action. The second point advanced in support of the motion was that the evidence revealed no unbroken chain of custody of the seized narcotics reasonably assuring that the capsules introduced into evidence were the same as those which Jenks said he took from the possession of appellant. At the conclusion of arguments by counsel on the merits of these two claims, the court, without elaboration, denied the motion.

At the succeeding trial before the jury, it was stipulated that (1) the capsules in evidence allegedly taken from appellant did in fact contain heroin, and (2) their chain of custody was from Officer Jenks to Officer Gorney to Mr. Steele to the courtroom. Officer Jenks was the only witness for the prosecution and testified on direct essentially as he had on the motion to suppress.1 He was cross-examined only briefly, and there were no questions relating to the search except one which asked whether appellant had his coat on when he got oafr of the car, to which the answer was in the affirmative.

The first witness for the defense was one Smallwood, who testified that he was in the car with appellant when the latter was stopped the second time. When appellant got out of the car and walked back to meet Officer Jenks, said Smallwood, appellant did not have his coat on; it was, instead, lying in the back seat of the ear. Smallwood had left the immediate vicinity of the car when the narcotics were discovered, although he later observed the police searching the car. The police did not search him or the third occupant of the car when it was stopped.

Appellant testified that, after he got out of the car and was told that he was under arrest for misrepresentation, Officer Jenks went over to the car to get the keys. He picked up appellant’s coat in the car and searched it. Finding the narcotics, he announced to appellant that he was under arrest for a narcotics violation. Appellant said that he had allowed his coat to be worn by someone else that day, and that he himself had never placed narcotics in it. On rebuttal, Officer Jenks testified as follows:

“Q. Officer Jenks, where did you get the jacket from or where did you find the narcotics ?

“A. In his left breast pocket like my jacket right here — like the jacket I have on.

“Q. Where was the jacket when you recovered the narcotics?

“A. He was wearing it.”

In a colloquy with the court pertaining to the instructions to be given, the theory of the defense made before the jury appears clearly in this exchange:

“THE COURT: As I understand, you do not deny the narcotics drug was found by the arresting officer that night or that it was found in a coat, but your position being that the coat was out of the possession of the defendant for a period of hours on the 23 of April, and when it was returned, it was thrown by this friend, Shorty, in the back seat of the car, and not worn by the defendant, and the Officer found the drug in the coat that had been lent to Shorty. Is that your position ?

“[DEFENSE

COUNSEL] Yes, your Honor.”

II

On appeal to this court, three points were raised by appointed counsel, who had not represented appellant in the District Court. One was a claim that the *1219 District Court erred in denying appellant’s pretrial motion, made pro se, to dismiss the indictment for want of the speedy trial required by the Sixth Amendment. The other two related to the motion to suppress, and consisted of (1) the chain of custody argument made unsuccessfully in the District Court, and (2) a contention that the narcotics were seized in a search which exceeded the proper scope of one incidental to a traffic arrest.2 The latter is, of course, in sharp contrast to the argument, pressed upon the District Court but not here, that suppression should flow from the circumstance of the initial examination of the draft card four days before the arrest itself. We do not turn in the first instance to the scope issue, since a ruling for appellant on the merits of either the speedy trial or the chain of custody questions would result in the dismissal of the charges against appellant and render unnecessary our reaching an important constitutional question on a record not compiled by reference to it.

1. Speedy Trial

Although appellant was continuously represented in the trial court by appointed counsel, he appears to have filed on June 26, 1969, a pro se motion to dismiss for lack of a speedy trial. In this motion appellant complained only of the fact that he had been in jail for 13 months unable to make bond. This motion was referred to the judge before whom the case was set for trial and was denied by him.

The period of time from appellant’s arrest on April 23, 1968, to his trial on August 21-22, 1969, was just short of 16 months. It appears, however, that the principal reason for the delay was that Officer Gorney, who was an essential witness with respect to the narcotics proposed to be introduced in evidence, suffered a severe heart attack in the winter of 1968-69, and the Government was obliged to seek continuances until he could testify. The record shows one such continuance from March 26, 1969, to April 21. On April 18, the Government reported that it would be at least another month before Officer Gorney’s health would permit him to appear, and that, since appellant was unwilling to stipulate as to what Gorney’s testimony would be, a further continuance was necessary, to which appellant’s counsel did not object. In this connection, it appeared that appellant’s counsel was willing to stipulate as requested, but appellant would not consent. In the event, Gorney was never able to testify, and the Government had to go to trial without him. As reported above, however, at trial a stipulation was forthcoming from the defense which could have made trial possible many months earlier.

Although 16 months are certainly more than enough in the way of delay to invite the closest scrutiny, our examination of *1220 the record does not convince us that justice to appellant requires dismissal of his indictment. This is not a case where the Government was either purposefully or inadvertently neglectful. It was prepared to go to trial well within the normal course, but, through no fault of its own, was put under the necessity of seeking delay until Officer Gorney’s health improved. Appellant’s counsel did not object to this, and appellant himself registered no dissatisfaction until only a few weeks before the trial began.

Moreover, there was no allegation before the District Court of reasonable possibility of significant prejudice to appellant in the preparation of his defense. See, e. g., Coleman v. United States, 142 U.S.App.D.C. 402, at 405, 408-410, 442 F.2d 150, at 153, 156-158 (1971); Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294, 364 F.2d 684, 687 (1966). His complaint was that his pretrial detention in jail was so long as to violate his Sixth Amendment right. While length of pretrial incarceration is an important consideration, it is only one of several factors to be taken into account, and may be overridden by a showing, like that before us, of a reason for the delay. See United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1965), and Note, The United States Court of Appeals for the District of Columbia Circuit, 1968-1969 Term, 58 Geo.L.J. 80, 14Ó-141 (1969). It differs in kind from an allegation of specific instances of adverse impact upon trial preparation and defense. At the trial, appellant produced one witness who as at the scene of the arrest and who supported the theory presented by the defense to the jury. No other witness was identified who might have done better.

We have said that there is “no touchstone of time which sets a fixed maximum period that automatically requires application of the Sixth Amendment.” Hedgepeth v. United States, 124 U.S.App.D.C. 291, 294, 364 F.2d 684, 687 (1966). Although the delay in this case is regrettable, neither in its causes nor its consequences does it require the public interest in the prosecution of one charged with serious crime to yield to appellant’s interest in an expeditious determination of the merits of the charge against him.

2. Chain, of Custody

Appellant insists that the narcotics should not have been admitted into evidence for the reason that the prosecution failed to establish a chain of continuous custody from the time of their seizure until their appearance in court. The break occurred, so it is said, with the intervention of Officer Gorney. Although Officer Jenks testified that he saw a locked sealed envelope in Gorney’s possession, he did not say that he actually saw the cream-colored envelope placed in it nor did he see Gorney actually seal the larger envelope. Since Mr. Steele, the chemist, did not receive the locked sealed envelope until five days later, the continuity of the chain is not, argues appellant, accounted for in such fashion as to guarantee that the capsules offered in evidence were those taken from appellant's coat.

We have in the past, as appellant points out, been alert to the necessity of high standards in maintaining the security of criminal evidence. See Novak v. District of Columbia, 82 U.S.App.D.C. 95, 160 F.2d 588 (1947). Our most recent formulation of this principle, however, appears in Gass v. United States, 135 U.S.App.D.C. 11, 14, 416 F.2d 767, 770 (1969), where we said that “the possibilities of misidentification and adulteration [must] be eliminated, not absolutely, but as a matter of reasonable probability.”

At trial appellant was willing to stipulate that the capsules went from Jenks to Gorney to Steele, before being produced by the last-named in the courtroom. We are not prepared to say on this record that there is such a probability of the capsules having been tampered with while in Gorney’s possession as to render them inadmissible in evidence. It is, of course, true that Gorney was, for *1221 reasons beyond his own and the Government’s control, unable to testify himself, but we do know from Mr. Steele that he received a locked sealed envelope from Gorney, and that he found inside the cream-colored envelope sealed with scotch tape and bearing Jenks’ and Gor-ney’s initials — all as testified to by Jenks.3

In the light of this and other corroborative circumstances contained in the record, we are not impressed with the likelihood that chicanery or carelessness characterized the handling of the capsules at some point in their journey from Jenks to the courtroom. If appellant is in fact innocent, it is hardly because the capsules found in the coat are not the capsules offered in evidence. We find no error in the District Court’s rejection of this ground of the motion to suppress.

Ill

Neither before the division nor en banc has the Government relied upon the normal unavailability on appeal of issues not raised in the trial court. Indeed, in its suggestion for rehearing en banc it has strongly pressed this court to declare that there is an unqualified right to search the person as an incident of a lawful arrest, irrespective of the nature of the crime for which the arrest is made, in the interest of the protection of the arresting officers, the arrestee, and those with whom he may come into contact while in custody.4 To clear away obstacles to this end, it has made representations of fact which go beyond those ascertainable from the record. These are said to be derived from consultations between Government counsel handling the appeal and the prosecutor who tried the case, and consist of reported assertions by the latter that Officer Jenks told him that he [Jenks] “did in fact conduct a search of appellant by examining the left breast pocket of his outer coat and did not limit himself to a mere patdown.” In the light of these concessions, the Government asserts that there is no need for a remand because it disclaims any reliance upon the doctrine of plain view.

The Government does argue to us, however, that the overriding justification for a right on the part of the arresting officer to conduct an unlimited search of the person is the protection of the officer’s safety and the safety of all persons with whom the arrestee would come into contact while in custody. It asserts that a lawful arrest, unlike an investigatory stop, creates a continuing relationship between the officer and his prisoner which warrants a protective search going beyond the mere frisk — a *1222 search indeed that is protective not only of the officer but of the arrestee in the sense that the latter will not be able to use suicidally against himself lethal articles not likely to be disclosed by a mere patdown.

If a purpose of this character is to provide the legal basis for the search of appellant’s person in this case, it would presumably be of interest to know-such things as whether Officer Jenks’ search in this case began and ended with the left breast pocket of appellant’s coat, and whether departmental practice or regulations require the arresting officer in every case to search the person of the arrestee thoroughly and completely at the point of arrest in order to assure the safety of both. Such an objective is hardly realized by a search which terminates the moment incriminating evidence is found, even though the search itself is far from finished. The record before us is silent on this score, and remains so even after the Government’s volunteered and double hearsay supplementation.

Moreover, there are inevitably difficulties with this kind of supplementation, as compared with testimony under oath on the record elicited by examiner and cross-examiner alike by reference to a precise articulation of what is claimed to be the governing law. A witness with no purpose to evade or distort will not infrequently tell quite a different story when examined under these more rigorous conditions. The rule of law we are urged to declare is too important to admit of confident delineation in the absence of the traditional and tested method of getting at the truth in an adversary context. Our appellate function is best performed when there is before us a record made under circumstances where trial counsel and trial court alike are, in the taking of evidence, fixing their attention upon what is claimed to be the applicable principle of law.

On the record as it came to us, the District Court is surely not to be faulted for ruling as it did. How it may rule after remand is something we leave to the event. We need not decide whether we might have let the conviction stand in light of the record’s silence with respect to plain view or other circumstances bringing the search within established doctrines of permissible scope. A new element has been added by the Government’s extra-record representations, which we are hardly warranted in ignoring. They leave us little or no room for disposing of this case by affirmance without further inquiry, although, as indicated above, neither do they go so far as to provide a reliable factual base upon which to promulgate the rule of law for which the Government contends.

Since a remand is to be made, we do not pursue at length the legal issue of the permissible scope of the search of the person incident to a lawful arrest. This has been done in the comprehensive opinion issued by a majority of the division,5 and in the petition for rehearing and suggestion for rehearing en banc filed by the Government.6 They identify and discuss the relevant authorities, and *1223 they set forth the theoretical foundations variously advanced in support of the conflicting claims as to what the law is or ought to be. Familiarity with them by both court and counsel participating in the remand would illuminate the matters to be explored and decided, and generally contribute to the realization of the purposes for which the remand is being made.

Assuming only for the moment that the Government’s disclaimer in this court of plain view is borne out by the testimony on remand, this case may well provide an appropriate vehicle for rational definition of the scope of personal searches incident to lawful arrest — an objective which is urgently important to the administration of justice in this circuit. A central condition of its achievement is an authentic version of what actually happened in this case, including such information as may prove relevant with respect to the operational problems and practices of the police in this field. Only then, and aided by the District Court’s application of the law as conceived by it to the facts as found by it, can we meaningfully determine the reach of the Fourth Amendment in the light of existing Supreme Court decisions.

The record in this case is remanded to the District Court for a supplementary evidentiary inquiry on the motion to suppress.

It is so ordered.

. Officer Jenks’ description at trial of the finding of the narcotics is contained in the following colloquy:

“Q. W,hat did you do then, officer?

“A. I advised him he was under arrest for operating after revocation and obtaining permit by misrepresentation.

“Q. All right, sir. Now, then what happened?

“A. I searched him in front of me. He had a jacket on. In his left coat pocket — jacket pocket was a wadded up cellophane packet containing 14 gelatin capsules which contained white powder.”

. At the suppression hearing, Officer Jenks testified that, in the course of the investigation made by him after the first stop, he recognized appellant in the picture attached to the driver’s permit application in the traffic records. He was then asked on direct examination whether he had found “another picture in any files with respect to Mr. Robinson?” His answer was in the affirmative, and he described that picture as being “in the central records where the criminal files are kept.” Although nothing was made of this in the District Court, appellant’s brief in this court argued that, because appellant had in fact prior narcotics convictions on his record, Officer Jenks knew of this from his examination of the

central records, and that his purpose in arresting appellant on their second encounter was to search for narcotics.

Thus, appellant’s presentation of the search issue to the division was largely in terms of an allegedly pretextual arrest, which in law is no arrest at all, at least for purposes of a lawful search incident thereto. Appellant did, in a short footnote to his brief, argue also that, if appellant’s coat was in the car when it was searched by Jenks, this would have exceeded the scope of a permissible search incident to a legitimate arrest for a violation of the motor vehicle laws. The division in its opinion assumed the facts underlying these alternative formulations to be against appellant.

. Novah involved an asserted gap between the testimony of a police officer who secured a urine sample and placed it in a flask which he initialed, and the testimony of a chemist who, while testifying in court, had in hand the bottle containing the urine he had tested. This court, in opting for inadmissibility, was bothered by the failure to have the police officer testify that the bottle present in court was the same he had used and marked. In the case before us, Jenks testified that the cream-colored envelope, described by Steele and produced by him in court, was the one in which he had enclosed the cigarette package.

. There appears to be no question on this record regarding the propriety of Officer Jenks’ decision to take appellant into custody, in view of the offenses for which he was arrested. Those offenses, i. e., operating a motor vehicle after revocation of his driver’s permit and obtaining a new permit by misrepresentation, are defined, respectively, by statute and ordinance. 40 D.C.Code § 302 (d) ; Section 157(e) of the Traffic Regulations of the District of Columbia. The former is subject to punishment by a fine of $100 to $500, or imprisonment from 30 days to one year, or both. The latter carries a fine of not more than $300 or 10 days in jail. The former is expressly referred to in General Order No. 3 of the Metropolitan Police Department as one of the class of traffic offenses in which the officer is warranted in making a summary arrest; and, at the time of the arrest here involved, the rules of the Court of General Sessions precluded the mere posting of collateral (which is subject to forfeiture without court appearance) but required instead a $300 bond securing the obligation to appear in court.

. The majority asserted that a search incident to arrest can have only two lawful objectives. One is the seizure of evidence of the crime giving rise to the arrest; and the other is to remove any weapons useful in resisting arrest or effecting escape. It held the search invalid in this case because (1) the crime for which appellant was arrested (i. e., driving a car after permit revocation) did not comport with the existence of further evidence, and (2) there being no basis for searching appellant’s pockets for evidence, the scope of the weapons search was limited to a patdown.

The dissenting judge, although not accepting this formulation, addressed himself to what he insisted to be the impro-jrriety of reversing the District Court on a point not presented to it and which, if it had been, might have brought out facts clearly validating the seizure.

. In addition to the arguments, noted above, as to the broad purpose to provide total protection arising out of the custody relationship created by a legal arrest as distinct from an investigatory stop, the Government alleges that there may well have been an evidentiary basis for *1223 the search. This was said to reside in the fact that notices of permit revocation are normally sent offending drivers, and the finding of such a notice in appellant’s possession would have been probative of his knowing commission of the crime for which he was arrested. The Government also argues that, in any event, the application of the exclusionary rule in eases like this serves no public purpose.