APPEAL FROM UNITED STATES DISTRICT COURT FOR EASTERN DISTRICT OF PENNSYLVANIA (Criminal No. 78-363-2)
Before Aldisert and Weis, Circuit Judges, and Diamond, District Judge.*fn*
This appeal follows appellant's conviction of violating 18 U.S.C. § 922(h)(1) which prohibits convicted felons from receiving firearms shipped in interstate commerce. Appellant contends that the trial court erred in refusing: (1) to submit to the prospective jurors a voir dire question designed to detect racial prejudice; (2) to suppress as evidence the firearm in question; and (3) to order the prosecution to accept a proferred stipulation regarding appellant's prior felony conviction. For the reasons set forth below, we conclude that the trial court erred in refusing the voir dire question and, therefore, reverse appellant's conviction and order a new trial.
I. THE VOIR DIRE QUESTION
Following the court's voir dire examination of the panel, appellant requested that the veniremen be asked "whether or not the fact that the defendant is black would in any way affect their judgment in the case or cause some difficulty to return a fair verdict?" The court refused, stating that the panel had seen the defendant and had been asked generally whether they would have any difficulty returning a verdict for or against him. Subsequently, when the matter was raised in a motion for new trial, the court noted as additional grounds for its ruling that three of the jurors and one of the government's witnesses were black.
We believe that our holding in U. S. v. Robinson, 485 F.2d 1157 (3d Cir. 1973) is controlling. In Robinson, relying on Aldridge v. U. S., 283 U.S. 308, 51 S. Ct. 470, 75 L. Ed. 1054 (1931) and Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973), we held that "upon a timely request, the judge must permit" an inquiry into the possible racial prejudice of a jury and that, therefore, the trial court erred in refusing to inquire of the veniremen whether they would consider a witness's race in assessing his credibility. 485 F.2d at 1159. We so ruled even though both parties had black witnesses and the panel already had been asked whether for any reason they would be prejudiced for or against the government.
The government argues that Robinson has been undermined by Ristaino v. Ross, 424 U.S. 589, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976), wherein the Court held that inquiry into racial prejudice was not constitutionally required in every case, but rather was to be judged on a case-by-case basis. While it is true that the Court refused to create a per se constitutional rule in Ristaino ; nevertheless, its holding is of little help to the government here. For in Ristaino, the constitutional propriety of a State criminal proceeding was in question, and while the Court refused to rule that a voir dire question similar to the one at issue here was constitutionally mandated, it nevertheless made it clear that had it been reviewing a Federal proceeding, in the exercise of its supervisory powers it would have required that the racial-bias question be asked "if requested by the defendant." Ristaino, fn. 9. The net holding in Robinson, therefore, remains intact, and we conclude that the trial court erred in refusing to submit appellant's voir dire question. We also reject the government's fall-back contention that if there was error it was harmless, since we believe here, for the reasons stated in Robinson, that refusal to make the inquiry was not harmless error.
II. THE SEIZURE OF THE FIREARM
The district court denied appellant's motion to suppress as evidence the predicate firearm, which was seized from defendant's person incident to his warrantless arrest.
The record below reveals the following facts and circumstances relative to the seizure. On October 31, 1978, at approximately 2:30 P.M. a shooting occurred at a hotel in Philadelphia. The assailant seriously wounded one person and shot at a witness in making an escape. Some time late that afternoon, after speaking to witnesses, two of whom actually saw the shooting, police focused on appellant as their prime suspect. At approximately 6:00 that evening, officer Albert Johnson of the Philadelphia Police Department received information from a reliable informant who stated that he knew from his personal knowledge that appellant had taken refuge in a house at 1920 Napa Street in Philadelphia, that he was armed, and that he was going to get his affairs together and then head south. The lessee-occupant of the Napa Street residence was one Christe Lewis whom appellant had known for some eight months. Ms. Lewis occupied the house along with her fiancee, and a roomer, one Lettie Allen.
Acting on the informant-information, officer Johnson and another policeman undertook surveillance of the Napa Street residence. Johnson stated at the suppression hearing that they intended to wait until the subject exited the building and then apprehend him. (46a)*fn1 However, sometime between 8:00 and 8:30 P.M., Johnson decided to contact detective Edward Gallagher who also was working on the case. Johnson told Gallagher of the informant's tip and of Johnson's surveillance activities over the past hour or so. Gallagher instructed Johnson to leave the scene and meet him and a Detective Weston at a place nearby. Upon meeting, Gallagher called for a wagon and two stake-out officers, policemen James Dawson and Dennis Walen. On arrival, the unit initially went to Berks Street, about a block from the Napa Street residence, from where officers Walen and Dawson began to advance toward the house with Gallagher and Weston several feet behind them. Officer Johnson went to the rear of the house where he remained with two other officers during the entire time. As the party traversed the sidewalk near the Napa Street house, they saw a black male open the front door and then quickly duck back inside. No one at the suppression hearing identified the male as the appellant.
Thereafter, according to the testimony of Dawson, the entire unit "went right into the house." (53a). The time was between 9:00 and 9:15 P.M. Gallagher testified that he and Weston followed Walen and Dawson into the house and that he, Dawson, and Walen had their guns drawn. Walen and Dawson headed straight upstairs for the second floor bedroom where they apprehended appellant and seized the firearm in question from his person.
Despite the fact that a magistrate is apparently available twenty-four hours a day at the Philadelphia Police Administration Building, the officers admitted that they never attempted to procure either a search or an arrest warrant prior to the entry of the dwelling.
Our review of the witnesses' accounts of the hotel shooting and the balance of the police investigation leaves us with little doubt that the police had probable cause to arrest appellant. The real question, however, is the propriety of the warrantless entry of a private dwelling place to make that arrest. There is no question, of course, that if the entry and arrest were proper, the seizure was also proper as a valid ...