Ralph A. Vanella and George William Sullivan v. United States

(concurring).

While the back door was ajar, it was not open wide enough to enable Falbaum to enter without giving it a further push. Under these circumstances, I do not believe that the wide-open-door rule sanctioned by such cases as Ng Pui Yu v. United States, 9 Cir., 352 F.2d 626 ; United States v. Conti, 2 Cir., 361 F.2d 153 ; and United States v. Williams, 6 Cir., 351 F.2d 475 , is applicable. In my opinion, therefore, Falbaum broke open an outer door within the meaning of 18 U.S.C. § 3109 (1964).

However, I think the facts related in the majority opinion establish exigent • circumstances excusing Falbaum from giving the section 3109 notice before exercising the slight amount of force needed to push open the partly-open back door. Vanella’s hurried exit out the back door gave Falbaum reasonable cause to believe that Vanella knew that an officer was at the front door to arrest him. Fal-baum tried to stop Vanella to talk with him, the fair inference being that, if afforded the opportunity, he would have given Vanella further notice of what Va-nella apparently already knew.

When Vanella, instead of stopping, turned around and ran back into the house, Falbaum was entitled to…

A panel of this court consisting of Judges Chambers, Orr and Hamley on April 20, 1965, rendered an opinion in the above case which was written by Judge Orr and concurred in by Judge Hamley. Judge Chambers dissented. That opinion is as follows:

“IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Ralph A. Vanella and George William Sullivan, Appellants, vs. United States op America, Appellee. J No. 19,270

Appeal from the United States District Court for the Southern District of California Central Division

Before CHAMBERS, ORR and HAMLEY, Circuit Judges.

Having been convicted on June 12, 1963, of possession of marihuana, Va-nella and Sullivan appeal. They contend that their rights under the Fourth Amendment to the United States Constitution were violated in that federal and state officers subjected them to unlawful search and seizure in securing the marihuana upon the possession ■of which their prosecution was based and which was introduced into evidence against them. We conclude that their contention is valid and that the motion made to suppress the questioned evidence should have been granted.

In presenting the picture of that which transpired, a somewhat lengthy…

(dissenting) :

I dissent. I would think that we would be justified in upholding the searches under Harris v. United States, 331 U.S. 145 , 67 S.Ct. 1098 , 91 L.Ed. 1399 , and United States v. Rabinowitz, 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 . I do not think Trupiano v. United States, 334 U.S. 699 , 68 S.Ct. 1229 , 92 L.Ed. 1663 , compels the result the majority reaches. It is my belief, on the testimony most favorable to the government, the searches were reasonable.

The appellants have other points for reversal which I do not accept, but *55 since the majority does not reach them, neither do I.”

Olí May 20, 1965, appellee United States of America filed a petition for rehearing entitled Ralph A. Vanella, Appellant, vs. United States of America, Appellee, a copy of which petition is set out in the footnote. 1 At oral argument *56 government counsel contended that the rehearing petition applied to Sullivan, also. There is nothing in the petition to indicate that Sullivan was included therein. The petition does not mention Sullivan nor set forth any reason why the reversal of Sullivan’s conviction should be set aside. Therefore, since the judgment as to Sullivan is not before…

371 F.2d 50 Ralph A. VANELLA and George William Sullivan, Appellants, v. UNITED STATES of America, Appellee. No. 19270. United States Court of Appeals Ninth Circuit. September 2, 1966. Rehearing Denied October 10, 1966. Joseph L. Strabala, San Francisco, Cal. (Court-appointed), Fryer, Tjensvold, Feix & Phillips, San Francisco, Cal. (Norman Tuttle, II, Oakland, Cal., on the brief), for appellants Vanella and Sullivan. Manuel L. Real, U. S. Atty., John K. Van De Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Barry Tarlow, Benjamine S. Farber, Asst. U. S. Attys., Los Angeles, Cal., for appellee. Before CHAMBERS, HAMLEY and HAMLIN, Circuit Judges. HAMLIN, Circuit Judge: 1 A panel of this court consisting of Judges Chambers, Orr and Hamley on April 20, 1965, rendered an opinion in the above case which was written by Judge Orr and concurred in by Judge Hamley. Judge Chambers dissented. That opinion is as follows: 2 "IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 3 ----------------------------------------------------- RALPH A. VANELLA and GEORGE WILLIAM SULLIVAN, Appellants, | vs. > No. 19,270 UNITED…