# Miller v. United States (357 U.S. 301)/Dissent Clark

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
* Dissenting Opinion Clark
United States Supreme Court
357 U.S. 301
Miller v. United States (357 U.S. 301)
Argued: Jan. 28, 1958. --- Decided: June 23, 1958
Mr. Justice CLARK, with whom Mr. Justice BURTON concurs, dissenting.
I agree that a requirement of prior notice of authority and purpose should not be given a 'grudging' application. But by the same token it should not be reduced to an absurdity. A majority of the Court of Appeals has concluded that petitioner, at the time the police entered his apartment, 'already fully understood who the officers were and that they sought to arrest him.' 100 U.S.App.D.C. 302, 310, 244 F.2d 750, 758. The entry, therefore, was held valid under District of Columbia law. This Court now superimposes upon the local rule of the District an artificial and unrealistic requirement that, even under the circumstances found here, police must make 'an express announcement' in unmistakable words that they are the police and have come to make an arrest.
The Court attempts to justify interference in local law by what it terms a 'concession' of the Government that validity of the entry must be tested by a federal statute relating to forcible entry to execute a search warrant. But the fact that the Government seeks clarification of a general federal statute, possibly to serve its purposes in prosecutions elsewhere, is no reason for us to oblige, especially when the result is to subvert existing local law. In the process, the Court reverses the conviction of a wholesale narcotics violator with a previous record in the traffic who carries on his abominable trade by using a juvenile as his dope peddler and co-conspirator.
The facts on which the Court of Appeals found the entry valid were these: Officers trailed Shepherd as he proceeded by taxicab to purchase heroin for Lewis, a narcotics agent. Shepherd went to the apartment occupied by his sister, Mrs. Byrd, and by petitioner. The officers saw him enter the apartment building. Agent Wilson followed him to the basement entrance and saw him disappear down a lighted hall about 'as long as the jury box.' Other than the entrance, there were only two doors into the hall, one leading into petitioner's apartment, the other into a furnace room. No one lived in the basement except petitioner and Mrs. Byrd. Wilson then withdrew to a location across the street. He saw a light go on in the furnace room, remain on shortly, and then go out. Shepherd soon emerged, re-entered the taxicab and drove away. The officers followed, arrested Shepherd, and seized 100 capsules of heroin found in the taxicab.
The opinion of the Court of Appeals graphically described the subsequent events:
'After the arrest of Shepherd, the officers, having found the 100 capsules of heroin, immediately went back to the apartment occupied by Mrs. Byrd and Miller, and, a few minutes later, knocked on the door and announced their identity. Thereupon Miller, known to the officers as a narcotics violator, having opened his door part way, recognized the officers of the narcotics squad and attempted to close the door. As he pulled the door to, the officers resisted his effort to close it, a chain bolt broke, and the officers arrested Miller and Mrs. Byrd.' 100 U.S.App.D.C. at page 304, 244 F.2d at page 752.
This summary is amply supported by the evidence. Wilson testified that petitioner previously met him when he was an agent with the Federal Bureau of Narcotics. He also knew petitioner in connection with a narcotics case. Officer Wurms testified that he too knew petitioner officially. As to their entry into the apartment, Wurms testified: 'I knocked on the front door * * * somebody asked, 'Who's there?' I said, 'Blue'-in a low voice, I said 'Police.' I repeated it two or three times in that manner. The door opened. There was a chain on the door. Blue Miller saw me, Agent Wilson, and I don't know who else he saw but he tried to close the door * * *.' Wilson described the entry this way: 'There was a short struggle there between Wurms and Miller to open the door and finally the door was forced open and we got ourselves into the apartment.' The officers found the marked currency and a carton of one thousand unfilled gelatin capsules. Three hundred and eighty-one such capsules filled with heroin were found in the furnace room across the hall.
At a pretrial hearing petitioner moved to suppress the marked currency, alleging that the officers had neither warrant nor probable cause for arrest. This motion was denied. At trial before a jury and a different judge the motion was renewed. In denying the motion, the judge said, 'I will give you the right to make another motion. You certainly have a right at the end of the testimony.' Petitioner never availed himself of this opportunity.
On appeal petitioner shifted his ground, emphasizing that even if the officers had probable cause to arrest him, such authority was improperly exercised because they did not formally announce their purpose before entry. The Court of Appeals held:
'Against the background of the facts as noted and the law as summarized, we find the officers at Miller's door, knowing that a felony had been committed and having probable cause to believe it was continuing. The statute spelled out their clear duty to arrest.' 100 U.S.App.D.C. 302, 309, 244 F.2d 750, 757.
The court agreed with the trial judge 'that the attempt of the officers to arrest Miller at his doorway under the circumstances of this case was not unreasonable,' and found that the breaking of the door chain 'in the course of his resistance (was) immaterial and his arrest, immediately made, was justified.' 100 U.S.App.D.C. at page 310, 244 F.2d at page 758. Concluding that Miller without doubt was aware both of the officers' identity and purpose, the court upheld the refusal of the trial court to suppress the evidence, and found the proof of guilt 'overwhelming and unanswerable.'
The majority, however, brushes aside these conclusions, explaining petitioner's action in slamming the door as 'the expected reaction of any citizen.' This is something entirely foreign to my concept of the respect a law-abiding citizenry pays to its law-enforcement officers. Nor can I accept the conclusion of the Court that the circumstances found by the Court of Appeals fall 'short of a virtual certainty that the petitioner knew of (the officers') purpose to arrest him.' His knowledge-in the absence of an express admission by him-can never be a 'virtual certainty.' Rather than attempting to psychoanalyze petitioner, we should measure his understanding by his outward acts. The Court of Appeals found that they indisputably established petitioner's awareness of the police purpose. We should not disturb that finding.
The majority does not deal with the 'exigent circumstances' of the case because the Government makes no claim for thus 'excusing compliance' with the statute. It is to be noted, however, that the Court of Appeals expressly based its opinion on the fact that the officers 'were confronted by the need for a decision arising from the necessitous circumstances of the situation.' The position of the Government does not excuse us from evaluating the circumstances of the whole case. I believe that the Court of Appeals was eminently correct in its conclusion that 'necessitous circumstances' here warranted the officers in entering the apartment. As that court pointed out, petitioner might have fled or hidden himself or destroyed the fruits of his crime, particularly in view of his background and the visit of his brother-in-law Shepherd only a few moments before. Certainly he soon would have learned of Shepherd's arrest. Moreover, his attempt to forcibly prevent the entry of the officers into his apartment required their immediate action. Any delay might well have precluded the arrest. Destruction of the marked money might have prevented the establishment of petitioner's guilt. As the Government points out, 'split-second action (was) necessary.'
I would affirm the judgment on the basis of the District of Columbia rule in Accarino, supra, which I believe this Court should honor.

## Notes

* ↑ The rule in the District with which the Court of Appeals found compliance was enunciated in Accarino v. United States, 85 U.S.A.pp.D.C. 394, 179 F.2d 456 (opinion by Judge Prettyman). Rehearing en banc in the instant case was denied without dissent, with the author of Accarino participating.
* ↑ While the Government in its brief agrees 'that the validity of the entry should be tested under the standard of 18 U.S.C. 3109,' it joins that position with the contention that '(u)nder these circumstances, (the police) entry complied with the teaching accepted in Accarino v. United States (85 U.S.App.D.C. 394, 401), 179 F.2d 456, 463.' See note 1, supra.
* ↑ Q. 'How did you know (Miller)?' A. 'Previous knowledge, and I have seen him before.' Furthermore, petitioner in his affidavit supporting his motion to suppress swore 'that officers Wilson, Pappas and four others did break the chain off the door,' and further that Wilson physically assaulted him in his apartment.
* ↑ See Fisher v. United States, 1946, 328 U.S. 463, 476, 66 S.Ct. 1318, 1325, 90 L.Ed. 1382, where the Court said, 'Our policy is not to interfere with the local rules of law which (District of Columbia courts) fashion, save in exceptional situations where egregious error has been committed.'
In Griffin v. United States, 1949, 336 U.S. 704, 69 S.Ct. 814, 93 L.Ed. 993, the Court determined that there was no 'federal rule' on the issue in the case. But it added that even if there were such a rule, it would not necessarily control in the District of Columbia: 'This Court, in its decisions, and Congress, in its enactment of statutes, have often recognized the appropriateness of one rule for the District and another for other jurisdictions so far as they are subject to federal law.' Id., 336 U.S. at page 712, 69 S.Ct. at page 818. The Court noted that it was the 'special function' of the Court of Appeals to decide questions of local law. 'Only in exceptional cases will this Court review a determination of such a question by the Court of Appeals for the District.' Id., 336 U.S. at page 718, 69 S.Ct. at page 821.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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