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03/27/58 Eugene Smith, v. United States of America

March 27, 1958




Before PRETTYMAN, BAZELON and BASTIAN, Circuit Judges.



BASTIAN, Circuit Judge.

This appeal is from a conviction under the narcotics laws.

The record discloses that on March 26, 1957, Lawrence O. Hayden, a special employee of the Metropolitan Police Department, went to the premises 2105 Fifth Street, N.W., Washington, D.C., accompanied by members of the Narcotics Squad, to purchase narcotics. Under the observation of the police, and after he had been searched for money and narcotics, *fn1 the special employee went into the house, entering the rear door, saw appellant, and asked the latter to sell him drugs. After discussion as to quantity, appellant agreed to and did sell to the special employee three capsules of heroin, which appellant took out of a small "Bufferin" bottle. Hayden then left the house. He gave the narcotics to the officers and informed them of what had transpired, describing appellant to them. No one had either entered of left the house while Hayden was in the premises.

Hayden was again searched and it was found that the marked five dollar bill which he had in his possession when he entered the house was no longer in his possession. A preliminary field test made by the officers of the three capsules purchased by the special employee showed the presence of narcotics.

The officers went to the rear door of the house, knocked on the door, and announced that they were police officers. When no one opened the door, they turned the knob and entered; they did not force their way in through the back door. The officers had no arrest or search warrant. No one had entered or left the premises between the time Hayden left the house and the time the officers entered. They immediately placed appellant and certain other occupants of the house under arrest. Appellant, at the time of the arrest, admitted to them the sale of the narcotics. Search of appellant and of the premises was then conducted. The search of appellant revealed the marked money and an empty "Bufferin" bottle; and, from an upstairs room, narcotics paraphernalia *fn2 was seized.

Before trial appellant made a motion to suppress certain evidence allegedly illegally seized. The court granted the motion to suppress the marked five dollar bill found on appellant's person, which was all that appellant had asked. Appellant denied ownership of the other items seized.

On the date set for trial and just before the jury was sworn, appellant orally moved, before the same judge who had disposed of the motion as to the five dollar bill, to suppress all statements and all evidence taken after the arrest and search. The trial court did not dispose of the motion at the time it was made but told counsel for appellant that he would "take care of that as we reach it." The case proceeded to trial.

The attorney for the Government had the narcotics paraphernalia and the "Bufferin" bottle marked for identification only but, when they were offered in evidence, the court ordered them excluded and instructed the jury to disregard those items. Appellant claims as error the action of the trial court in allowing the Government to present such evidence even for identification purposes.

Appellant complains that the oral confession made by him after his arrest was inadmissible as having been made in the course of an illegal arrest and in the course of an allegedly unreasonable search and seizure.

As to the legality of the arrest, the rule is settled in this jurisdiction, as it is in many others, that a law officer may arrest without a warrant where a felony has been committed and there is probable cause to believe the arrested person committed it. See, e.g., Shettel v. United States, 1940, 72 App.D.C. 250, 113 F.2d 34. We realize, of course, that the fact that the premises are a residence requires stricter requirements of reasonableness. *fn3 Davis v. United States, 328 U.S. 582, 66 S. Ct. 1256, 90 L. Ed. 1453. But a search incident to an arrest which is otherwise reasonable is not automatically rendered invalid by the fact that a dwelling place, as contrasted to business premises, is subjected to search. See Harris v. United States, 331 U.S. 145, 151, 67 S. Ct. 1098, 91 L. Ed. 1399.

Here the law officers had searched the special employee and found no narcotics before he went into the premises. They had given him marked money and, while under their observation, he went into and returned from the premises. Upon his return, the officers again searched the special employee and discovered the capsules and the absence of the marked money. A preliminary field test performed at that time on the capsules showed the presence of a narcotic drug. The special employee had informed the officers of the purchase of the capsules from appellant. The officers clearly had probable cause to arrest appellant.

The problem then is whether the officers had authority to proceed to the house and make the forthwith arrest; whether under the circumstances they were required to get a warrant; whether the search incident to the arrest was proper; and whether the statement of appellant made contemporaneously with the arrest was properly received in evidence.

The rule is well settled that an officer who arrests a person for a felony committed in his presence may search not only the person but also the place where he is discovered, and other places in the immediate vicinity which formed part of the scene of the crime. Here the seizure was practically contemporaneous with the arrest, the felony having been committed in the presence of the officers. The arrest was lawful, and immediately thereafter a search of the appellant was made and of the place where the sale took place. In our opinion both the arrest and the search were proper.

The case of Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145, is closely akin to the present one. There Agnello, one Alba, and several others were indicted for conspiracy to violate the Harrison Act, 26 U.S.C.A. (I.R.C.1954) ยง 4701 et seq., they being charged with conspiracy to sell cocaine without having registered with the Collector of Internal Revenue and without having paid the prescribed tax. The evidence introduced by the Government indicated that two persons employed by Government revenue agents for that purpose [as was Hayden here] went to the home of Alba and offered to buy narcotics from him and one Centorino. Alba gave them some samples; and it was arranged that the employees would come again on the Monday following, at which time they returned. Revenue officers and a city policeman followed them and remained on watch outside. Alba left the house and returned with Centorino. Centorino, followed by certain of the officers, went to his own house and thence to a grocery store belonging in part to Agnello, another part of which was Agnello's home. In a short time Centorino and Agnello came out of the last mentioned place and went to Alba's house. Looking through the windows, the officers saw Agnello produce a number of small packages for delivery to the employee of the revenue agents and saw the employee hand over money to Alba. Upon the apparent consummation of the sale, the officers rushed in and arrested all the defendants. Some of the packages were found on the table where the transaction had taken place and others were found in Agnello's pockets, all containing cocaine. On searching Alba the officers found the money given to him by the agent. While certain of the revenue officers were taking the defendants to the police station, the others went to Agnello's home and, in his bedroom, found a can of cocaine, which was offered in evidence. Admission was denied. However, when Agnello, on the witness stand, denied that he had ever seen the narcotics, the Government was permitted to put in evidence the can of cocaine seized in his home. The court also permitted to be received in evidence the articles obtained in Alba's home as incident to the arrest. The Supreme Court reversed the case as to Agnello because the search of Agnello's premises was not incident to the arrest, but affirmed as to Alba and others. In its opinion the Supreme Court said:

"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which is was committed, as well as weapons and other things to effect an escape from custody is not to be doubted. . . . The legality of the arrests or of the searches and seizures made at the home of Alba is not questioned. Such searches and seizures naturally and usually appertain to and attend such arrests. But the right does not extend to other places. Frank Agnello's house was several blocks distant from Alba's house, where the arrest was made. When it was entered and searched, the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests." Id. 269 U.S. at pages 30-31, 46 S. Ct. at page 5.

The Court pointed out further: "While the question has never been directly decided by this court, it has always been assumed that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein."

It seems to us that the Agnello case fits the instant case perfectly. Here the arrest was legal and the search was an incident to the lawful arrest.

See also Nueslein (infra ) where this court said

The authoritative answer is also found in United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653. We should note that in the instant case the officers believed that by the time they could get a search warrant there would be no narcotics in the premises. But, assuming that the officers had time to procure an arrest or a search warrant, were they bound to do so in this particular case? We think not. We are bound by this language in Rabinowitz:

"A rule of thumb requiring that a search warrant always be procured whenever practicable may be appealing from the vantage point of easy administration. But we cannot agree that this requirement should be crystallized into a sine qua non to the reasonableness of a search. It is fallacious to judge events retrospectively and thus to determine, considering the time element alone, that there was time to procure a search warrant. Whether there was time may well be dependent upon considerations other than the ticking off of minutes or hours. The judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential.

"It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the officers to procure one. The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. It is not disputed that there may be reasonable searches, incident to an arrest, without a search warrant. Upon acceptance of this established rule that some authority to search follows from lawfully taking the person into custody, it becomes apparent that such searches turn upon the reasonableness under all the circumstances and not upon the practicability of procuring a search warrant, for the warrant is not required. To the extent that Trupiano v. United States, 334 U.S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663, requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances - the total atmosphere of the case. It is a sufficient precaution that law officers must justify their conduct before courts which have always been, and must be, jealous of the individual's right of privacy within the broad sweep of the Fourth Amendment." Id., 339 U.S. at pages 65-66, 70 S. Ct. at page 435.

Only unreasonable search and seizure is proscribed by the Fourth Amendment and there is no exact formula for determining reasonableness; each case depends on its own facts and circumstances. In the absence of a warrant an officer must show probable cause. Was there here reasonable ground of suspicion supported by sufficiently strong circumstances to warrant a cautious man's belief that appellant was guilty of a violation of the narcotics laws? We think no reasonable man can doubt that probable cause did exist.

Appellant relies on Nueslein v. District of Columbia, 1940, 73 App.D.C. 85, 115 F.2d 690, but that case is of no help to appellant. In Nueslein, the law officers, in pursuance of a general investigation of an automobile accident, entered the home of the defendant without "color of right," as the court expressed it. A taxicab had struck a parked car; and, in an unoccupied cab, parked some distance from the scene of the accident, the police saw the registration card and character license of the cab owner. They went to the owner's house, knocked on the door, and received no reply. Then, without a search or arrest warrant, they either opened the door or passed through the door already open and entered the house. After some time, the owner of the taxicab came downstairs and stated that he was driving the cab at the time of the accident. He appeared to be under the influence of liquor. Thereupon, he was placed under arrest and later convicted of driving an automobile while under the influence of liquor. The court said:

"The officers, in the pursuance of a general investigation, entered the home under no color of right. They did not know that the defendant was driving t&e car; they did not know that any offense had been committed. If they had gone after a search warrant what would have been the crime charged, what evidence would have been detailed as pertinent? The absence of a search warrant could scarcely make good an entry for which no warrant could have been obtained. Even if a warrant could have been made out, it is still unreasonable to enter a home without one where only a misdemeanor not committed in the presence of officers could have been charged. When the officers entered they were just investigating. They were still illegally investigating when the defendant told them that he was driving the cab at the time of the accident. The officers looking him over adjudged him to be drunk, and then, and not until then, two and two equaled a drunken driving charge - a charge which can be made without an accident, the only starting point for this investigation. Then the officers took the defendant into custody, again violating his security." 73 App.D.C. at pages 88-89, 115 F.2d at pages 693-694.

The court stated further:

"While the IVth Amendment applies to the innocent, the misdemeanants, and the felons, what is an unreasonable search depends upon the nature and importance of the crime suspected, if any. That is why the rule has grown up that in felony cases officers may enter a suspect's home upon probable cause to arrest him, and then conduct a search incidental to the arrest. This defendant may have driven a taxi while under the influence of an alcoholic beverage; at least for some reason he wrinkled the fender of an unoccupied parked car, but the public interest in this case does not call for the rough and speedy conduct of ...

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